ITEMID: 001-112529
LANGUAGEISOCODE: ENG
RESPONDENT: ALB
BRANCH: CHAMBER
DATE: 2012
DOCNAME: CASE OF MANUSHAQE PUTO AND OTHERS v. ALBANIA
IMPORTANCE: 3
CONCLUSION: Preliminary objection joined to merits and dismissed (Article 35-1 - Exhaustion of domestic remedies);Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy);Violation of Article 6 - Right to a fair trial (Article 6 - Enforcement proceedings;Article 6-1 - Access to court);Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions);Respondent State to take measures of a general character (Article 46 - Pilot judgment;Systemic problem;General measures);Pecuniary and non-pecuniary damage - award
JUDGES: David Thór Björgvinsson;George Nicolaou;Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Päivi Hirvelä;Zdravka Kalaydjieva
TEXT: 4. The applicants were born in 1925, 1925, 1929, 1958 and 1964. They all live in Albania.
5. On 27 July 1995 the Vlora Commission recognised the applicants’ inherited property title to a plot of land measuring 5,000 sq. m. It further decided that the applicants would be compensated in one of the ways provided for by law.
6. The applicants sent various letters to the Commission in 1995, 1996 and 2002 about the issue of compensation but did not receive an official response.
7. On 30 March 2007 the Agency informed the applicants that it was in the process of determining the property valuation maps and allocating the appropriate funds. The outcome would pave the way for the establishment of the criteria for compensation claims.
8. On 6 October 2008 the Agency’s director decided proprio motu to verify the lawfulness of the 1995 Vlora Commission decision. To date, no other decision has been taken and the 1995 Commission decision continues to remain unenforced.
9. The applicants were born in 1937, 1941, 1944, 1950, 1936, 1960, 1962 and 1968. They all live in Albania.
10. On 31 October 1994 the Lezhë Commission recognised the applicants’ inherited title to a plot of land measuring 3,434 sq. m, out of which 713 sq. m were restored. The applicants would be compensated for the remaining 2,721 sq. m in one of the ways provided for by law.
11. On an unspecified date the applicants challenged the Commission decision before the court, claiming that a larger area should be restored to them.
12. On 10 December 1996 the Lezhë District Court decided that an additional plot of 1,187 sq. m should be restored to the applicants. Consequently, a total area of 1,900 sq. m was restored to the applicants.
13. However, to date they have not been provided with compensation in respect of the remainder of the property (1,534 sq. m).
14. The applicants were born in 1928, 1932, 1948, 1949, 1953 and 1957. They all live in Albania.
15. On 19 January 1996 the Korçë Commission recognised the applicants’ inherited title to a plot of land measuring 4,000 sq. m. It decided that, since the plot of land was occupied, the applicants would be compensated in one of the ways provided for by law. To date, the applicants have not been provided with any compensation.
16. On 15 January 1999 the Korçë Commission recognised the applicants’ inherited title over an agricultural plot of land measuring 59,546 sq. m. It decided that the applicants would be compensated in State bonds in the amount of 1,018,236 Albanian leks (“ALL”). To date, the applicants have not been awarded any State bonds or any other form of compensation.
17. The Government submitted that in 2009 the applicants applied for and received compensation in the amount of ALL 2,000,000 in respect of 200 sq. m from the Financial Compensation Fund (“FCF”). No supporting document was submitted.
18. The applicant was born in 1926 and lives in Albania.
19. On 7 June 1995 the Tirana Commission recognised the applicant’s inherited title to two plots of land measuring 63 sq. m and 597 sq. m, respectively. It further decided that, since the plots of land were occupied, the applicant would be compensated in one of the ways provided for by law. The Commission recognised the applicant’s right to first refusal of two buildings located on the land.
20. On 16 August 1995 the Commission recognised the applicant’s inherited title to another plot of land measuring 800 sq. m, of which 178 sq. m were restored. It decided that, since 622 sq. m were occupied, the applicant would be compensated in one of the ways provided for by law.
21. On an unspecified date the applicant lodged a claim for compensation with the Agency in respect of the Commission decision of 7 June 1995.
22. On 23 February 2009 the Agency dismissed the claim for compensation on the ground that the applicant had already benefited from the restitution of a plot of land measuring 178 sq. m. No appeal was lodged with the Tirana District Court within the statutory 30 days’ period.
23. The relevant provisions of the Albanian Constitution have been described, inter alia, in the judgment of Qufaj Co. Sh.p.k. v. Albania, no. 54268/00, § 21, 18 November 2004.
24. The first law on property restitution and compensation was enacted in 1993 (Law no. 7698 of 15 April 1993 – “the 1993 Property Act”, as amended). The 1993 Property Act has been described in detail in the judgments of Gjonbocari and Others v. Albania, no. 10508/02, §§ 36-43, 23 October 2007, Driza v. Albania, no. 33771/02, §§ 36-43, 13 November 2007, Ramadhi and Others v. Albania, no. 38222/02, §§ 23-30, 13 November 2007. The 1993 Property Act was repealed by the 2004 Property Act.
25. The 2004 Property Act aimed at the restitution of urban, immovable property, which had been expropriated, nationalised or confiscated prior to 29 November 1944. In the impossibility of restoring the original property, it provided for the grant of compensation (sections 1, 2, 3 and 5).
26. Under Article 13 compensation was to be determined on the basis of the property’s market value. The 2004 Property Act, as amended, provided for six forms of compensation: (a) property of the same kind; (b) public property located in tourist areas; (c) property of any other kind; (d) shares in State-owned companies; (e) the value of a State-owned property in the course of privatisation, and (f) a sum of money corresponding to the value attributed to the property at the time of the decision (section 11 as amended).
27. The 2004 Property Act initially instituted local Commissions, whose decisions were amenable to appeal to the State Committee on Property Restitution and Compensation (sections 15-17). In 2006 those institutions were replaced by the Agency for Restitution and Compensation of Properties (“the Agency”) and its regional offices. Decisions of regional Agency offices were open to appeal before the central Agency. Regional Agency offices were subsequently abolished. At present, the Agency is the sole administrative body competent to decide on restitution and compensation claims.
28. Section 23 of the 2004 Act provided for the establishment of a tenyear Financial Compensation Fund, whose aim was to provide financial compensation. It further recognised the former owner’s right to receive default interest covering the period running from the recognition of the property right until the award of the financial compensation, calculated at the annual median interest rate of the Bank of Albania. Section 28, as amended, provided for the establishment of the In-kind Compensation Fund (“IkCF”).
29. The 2004 Property Act has been amended at least seven times between 2004 and 2010; deadlines have been repeatedly extended. It has been described in further detail in Eltari v. Albania, no. 16530/06, §§ 27-45, 8 March 2011 and in Çaush Driza v. Albania, no. 10810/05, §§ 18-36, 15 March 2011.
30. Statistics concerning the property restitution and compensation process, as provided for by the Government, are annexed to this judgment.
31. In the context of the review of the constitutionality of the legislation after its entry into force, the Constitutional Court has been called upon, on several occasions, to rule on whether some of the 2004 Property Act provisions were compatible with the Constitution.
32. In decisions nos. 27 of 26 May 2010 and 43 of 6 October 2011 the Constitutional Court repealed as incompatible with the Constitution a number of the 2004 Property Act provisions, as amended, which empowered the central Agency’s director to re-examine, annul and repeal ex officio Commission decisions. Having regard, inter alia, to this Court’s judgments in the cases of Ramadhi and Others, cited above, and Hamzaraj v. Albania ((no. 1) (no. 45264/04, 3 February 2009)), the Constitutional Court reaffirmed that “Commission decisions were capable of conferring on individuals legal expectations equal to that created by virtue of a court decision which recognises an individual’s property rights”. Consequently, those decisions, which were not administrative acts within the meaning of that legal notion, were directly amenable to judicial review. Moreover, since such decisions had become “final and enforceable”, they could not be subject to review by the Agency’s director, who did “not embody the characteristics of a judicial body or quasi judicial body”.
33. The Constitutional Court’s Act (law no. 8577 of 10 February 2000) provides that its decision is erga omnes and binding (section 72 § 7). The decision enters into force on the date of its publication in the Official Journal, save as decided otherwise (section 26). As a general rule, the Constitutional Court’s decision, which repealed an act as incompatible with the Constitution or international agreements, produces effect from its date of entry into force (section 76 § 1). The decision applies retrospectively only: (a) in respect of a criminal punishment even while it is being executed, if it is directly connected with the implementation of the repealed act; (b) in respect of cases that are being examined by domestic courts, as long as no final decision has been taken; and (c) in respect of consequences, yet to be produced, of the repealed act.
34. Pursuant to the 2004 Property Act, as amended, the Government have adopted a number of by-laws, by way of Council of Ministers’ Decisions (“CMDs”) as described below.
35. Between 2005 and 2011 the authorities issued 6 CMDs in respect of the award of financial compensation to former owners (see Çaush Driza, cited above, §§ 38-43). In 2005 financial compensation was awarded in respect of compensation claims arising out of the Tirana Commission decisions. In 2006 financial compensation was awarded in respect of compensation claims arising out of the decisions of the Tirana and Kavaja Commissions. In 2007 the group of beneficiaries was expanded to include former owners who were in possession of a Commission decision issued with respect to cities for which a property valuation map had been approved and issued. In 2008, 2009 and 2011 all former owners, who were entitled to compensation, following a Commission / regional Agency decision, were eligible to apply for financial compensation. It would appear that no decision was adopted in 2010.
36. According to the CMDs adopted between 2005 and 2009, a claimant, whose right to compensation had been recognised in respect of the entire property, was required to lodge a standard application for financial compensation with the central Agency in Tirana, furnishing, inter alia, the Commission / regional Agency decision that recognised his right to compensation. The 2009 CMD further provided that a former owner was entitled to financial compensation on the condition that s/he had not benefited from: a) previous compensation; b) partial restoration/restitution of the property; c) the right to first refusal; d) the implementation of the Act on the Distribution of Land (Law no. 7501 of 19 July 1991). The 2011 CMD stated that a claimant, holding a final and enforceable decision, in respect of which no compensation had ever been awarded, was entitled to benefit from the award of compensation.
37. Applications would be examined in chronological order on the basis of the Commission/regional Agency decision date and number. The amount of financial compensation, which was to be calculated on the basis of property valuation maps, was limited to a maximum of 200 sq. m during the period between 2005 and 2009. The 2011 CMD established a tiered system according to which the amount of compensation was to be as follows: (a) the equivalent of 200 sq. m in respect of properties measuring up to 1,500 sq. m; (b) the equivalent of 300 sq. m in respect of properties measuring between 1,500 and 3,000 sq. m; (c) the equivalent of 400 sq. m in respect of properties measuring between 3,000 and 5,000 sq. m; (d) the equivalent of 500 sq. m in respect of properties measuring between 5,000 and 10,000 sq. m; (e) the equivalent of 600 sq. m in respect of properties measuring above 10,000 sq. m.
38. The lodging of an application entailed the payment of a processing fee. Claimants who had been unsuccessful in their application for financial compensation in a preceding year were to re-submit their application in the following year(s) once they had paid the processing fee. The 2011 CMD dispensed claimants from re-paying the processing fee in the event they re-submitted their claim for compensation.
39. Between 2007 and 2008 the Government approved and issued property valuation maps, which included the reference price per square metre throughout the country (see Çaush Driza, cited above, §§ 44-45). These maps are relied upon to calculate the value of expropriated properties and subsequently the amount of financial compensation to be awarded (compare with paragraph 26 above).
40. The 2004 Property Act, as amended, provided for the establishment of the IkCF (see paragraph 28 above). Between 2007 and 2008 the Government have adopted a number of CMDs on the procedures for the allocation of properties covered by the IkCF (see Çaush Driza, cited above, §§ 46-52).
41. In decision no. 350 of 29 April 2011 the Council of Ministers approved an Action Plan to address the issues identified by this Court in its Driza and Ramadhi and Others judgments. The Action Plan attributed the non-enforcement of final decisions to the following:
“... the issues faced to date relate to the lack of inter-institutional coordination concerning the exchange of information and the inter-operability of archives of those institution (...). The property legislation is fragmented and needs to be consolidated and simplified in order to provide for simple and transparent compensation procedures. The nationwide process of the first registration of immovable properties has yet to be concluded. There is no unified, national, property map. The Agency lacks a unified database of decisions (...). The process of legalisation has yet to be completed and the identification of properties that would become part of the In-kind Compensation Fund has not finished.
`... the [Government] having regard to the legitimate expectations of owners for so many years, expresses their intention to provide the compensation amount at 100 per cent.”
42. The Action Plan described two schemes of compensation.
43. The transitional compensation scheme (skema kalimtare) would apply in 2011 (see paragraph 37 above for more details).
44. The final compensation scheme (skema definitive) would become operational in 2013, upon the estimation of the total financial bill. The final scheme would rely on digital cartographic and juridical data as produced by the Agency for Preparation of Standard Maps. A claimant possessing a final, enforceable decision would have to submit an application form to apply for compensation. The registration of the submitted application form into an electronic database would be in chronological order on the basis of the Commission’s / Agency’s decision date. A claimant holding more than one final, enforceable decision shall have them ranked chronologically. The compensation amount would be paid in full and in instalments.
45. The authorities would retain discretion as regards the type of compensation to be awarded. Claimants would not have the right to choose one type of compensation over another. If a claimant refused the type of compensation awarded, he would forfeit his right to compensation as regards the concerned instalment. Compensation would be automatically carried out by the authorities. In-kind compensation would take priority over financial compensation. Until the total allocation of properties to the IkFC, which would be completed by 2018, in-kind compensation would be distributed as it becomes available.
46. A new directorate, which would coordinate different State bodies, would be established within the Ministry of Justice.
47. The Action Plan did not contain time-limits as regards its implementation.
48. On 25 February 2010 Parliament enacted the Special Compensation Fund Act (Law no. 10239), which is a special fund within the meaning of the budget act. The Special Compensation Fund beneficiaries are two-fold: (1) former owners whose right to compensation was recognised on account of the 1993 and/or 2004 Property Act; and (2) former owners whose right to compensation was recognised on the strength of the Legalisation Act (see “The Legalisation Act” section below).
49. The revenue of the Special Compensation Fund would consist of: (a) annual allocations from the State budget in accordance with the 2004 Property Act as amended; (b) proceeds deriving from the sale at auction of State properties in respect of which no decision on restitution or compensation has been adopted; (c) income generated during the process of the legalisation of unauthorised constructions (see paragraph 51 below); (d) income generated as a result of the implementation of other laws and by-laws; and (e) donations.
50. The Special Compensation Fund will be administered by the Agency.
51. On 3 March 2006 Parliament enacted the Legalisation Act in order to regularise illegal constructions and extensions that had been constructed on public and private land in the 1990s and early 2000s as a result of rapid, profound, internal demographic movements. The Act provided for the transfer of ownership of the plot of land on which unauthorised buildings were constructed, from the original land owner through the State to the owner of the unauthorised building, against the payment of a sale price (sections 19-21) in cash or by way of privatisation vouchers (section 17/1). The formal land owner would receive full compensation in respect of the expropriated plot of land in accordance with the 2004 Property Act. The proceeds obtained by the legalisation process would be transferred to the financial compensation fund as provided for by the 2004 Property Act (section 32 as amended).
52. Statistics concerning the legalisation process, as provided for by the Government, have been annexed to this judgment.
53. In its latest decision of 6 June 2012 concerning the supervision of the execution of this Court’s judgments, at its 1144th meeting, the Committee of Ministers, inter alia, “took note of the elaboration by the Albanian authorities of [a] draft global strategy on property rights.” It further insisted that the Albanian authorities should make concrete progress in order to “establish a list of final decisions, finalise the land value map, calculate the cost of the execution of decisions in order to be able to define the resources needed, adopt the final execution mechanism and execute the decisions at issue.”
VIOLATED_ARTICLES: 13
6
P1
VIOLATED_PARAGRAPHS: 6-1
P1-1
VIOLATED_BULLETPOINTS: P1-1-1


ITEMID: 001-22045
LANGUAGEISOCODE: ENG
RESPONDENT: NLD
BRANCH: ADMISSIBILITY
DATE: 2001
DOCNAME: MENSAH v. THE NETHERLANDS
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Elisabeth Palm;Gaukur Jörundsson
TEXT: The applicant, George Kenneth Mensah, has both Dutch and Ghanaian nationality. He was born in 1954 and is living in Almere, the Netherlands. He is represented before the Court by Mr Kooij, a lawyer practising in Almere.
The facts of the case, as submitted by the applicant, may be summarised as follows.
In 1978 the applicant, when living in Ghana, entered into a traditional/religious marriage (i.e. a non-civil marriage) with a Ghanaian woman. Out of this relationship twins were born in 1982, George Kobina and Georgia Araba Mensah. In 1983 the relationship between the applicant and his partner ended. The applicant submits that their mother did not wish to continue to take care of the twins and that he has since taken care of them. He has not been in contact with the mother since and her whereabouts are unknown to him.
In March 1984 the applicant entered the Netherlands for the first time. On 4 May 1984 he was expelled from the Netherlands on the grounds that he was staying in the country illegally.
On 14 June 1984 the applicant married Ms. J. Lijesen, a Dutch national. The wedding took place in Ghana and the couple lived there for a short period together with the applicant’s children. At the end of 1984 the applicant’s wife decided to move back to the Netherlands. The applicant followed her and entered the Netherlands on 11 January 1985.
On 29 March 1985 the applicant obtained a residence permit to stay with his wife. One child was born to the applicant and Ms. Lijesen. Their marriage lasted until 29 March 1989, when it was dissolved. On 4 May 1990 the applicant obtained Dutch nationality.
On 15 August 1990 the applicant married Ms. M. Owusu Sekyere. They were divorced on 30 July 1992.
In 1995 the applicant entered into a traditional/religious marriage with Ms. Juliana Owiredua of Ghanaian nationality. Ms. Owiredua has since obtained Dutch nationality. On 17 July 1996 they concluded a cohabitation contract (samenlevingscontract).
The applicant submits that his two former partners, Ms. Lijesen and Ms. Sekyere, did not want to have his children brought into the family and refused to take care of their upbringing, whereas Ms. Owiredua had no objection to taking care of them and loves them as if they were her own. The applicant further submits that he was unable to let the children come to the Netherlands earlier as this would have been refused on the grounds of his lack of sufficient means of subsistence as required under Dutch law.
Upon the applicant’s departure from Ghana, his two children were initially, and temporarily, housed with a friend of the applicant’s in Ghana. After three years the children could no longer be taken care of by that friend and had to move to the house of another friend - a Mr Aboya - who, after having started a family of his own, no longer wanted to take care of the applicant’s children.
The applicant submits that his friends merely provided temporary accommodation for his children and were not effectively exercising parental authority over them. He took parental decisions, and he also paid all his children’s living expenses. From 1988 he has been visiting his children three times per year, being employed by an airline company enabling him to travel at cheaper rates.
The relation between the applicant and Mr Aboya worsened when he discovered that in the latter’s family, funds, which he had sent for his children, were used for other purposes. Thus, money intended to cover school fees was allegedly appropriated by Mr Aboya, as a result of which the children were unable to go to school in Ghana.
In September 1995 the then thirteen year old twins travelled to the Netherlands on a tourist visa. They have been living with the applicant and Ms. Owiredua ever since. On 7 November 1995 the applicant applied for a residence permit (vergunning tot verblijf) for his children.
On 31 October 1996 the State Secretary of Justice (Staatssecretaris van Justitie) rejected the request, finding that the conditions under which family reunification could be allowed had not been fulfilled. Thus, no evidence had been produced either as to the existence of family ties prior to the applicant’s residence in the Netherlands, or of contacts between the father and the children having been maintained. Neither was there any evidence that the applicant had supported his children financially. The State Secretary noted, inter alia, that the applicant, since his arrival in the Netherlands, had formed a new family twice. The situation in Ghana was not found to be of such a nature that the children could not return there, and neither had they become integrated in the Netherlands to such an extent that a return to Ghana could not be expected of them.
On 16 January 1997 the applicant filed an objection (bezwaar) with the State Secretary against his decision. On 3 June 1997 the State Secretary rejected the objection, finding that the family ties between father and children had been broken in view of the fact that the applicant’s leaving the twins in the care of friends for ten years could not be considered to have been a temporary measure. The State Secretary concluded that even if the situation in Ghana was less favourable for the children than the one in the Netherlands, they should nevertheless be presumed capable of fending for themselves without requiring intensive supervision and, if necessary, with financial support from the Netherlands.
On 30 June 1997 the applicant lodged an appeal with the Hague Regional Court (Arrondissementsrechtbank) sitting in Zwolle. He argued that the interpretation given by the domestic authorities of “family” was not in line with Article 8 of the Convention and the case-law of the Court. He further emphasised the difficulties which his children would face if returned to Ghana, with no adequate accommodation or care, whereas he was capable of taking care of them in the Netherlands.
On 1 July 1997 a person responsible for the children at school reported that they were suffering emotional problems as a result of their experiences in Ghana and that especially Georgina would benefit from a social rehabilitation programme.
On 22 July 1997 a hearing took place before the Regional Court during which it appeared that, contrary to earlier statements by the applicant, the children had stayed with their grandmother in Ghana for seven or eight years and that regular contacts also existed between the children and their mother.
The Regional Court rejected the applicant’s appeal on 24 July 1998. It held that the burden of proof as to the continued existence of family ties lay with the applicant and that he had failed to produce sufficient evidence of such family ties. In addition, no evidence confirming the applicant’s financial support or the actual exercise of parental authority over the children had been produced.
In respect of Article 8 of the Convention the Regional Court found that the current level of family life between the applicant and his children had been created at a time when the children were not allowed to be in the Netherlands. Therefore, the decision to refuse them residence was not aimed at depriving them of a previously granted right to family reunification. The Regional Court concluded that Article 8 of the Convention did not impose a positive obligation on the State to respect an alien’s choice to exercise his family life in the Netherlands. It was further held that sufficient facilities for the care of the children existed in Ghana.
On 21 January 1999 temporary guardianship (voorlopige voogdij) of the applicant’s daughter Georgia was attributed by the Juvenile Court Judge (kinderrechter) of Lelystad to a child care organisation, on the grounds that the applicant was not properly fulfilling his parental duties.
On 11 February 1999 the Child Care and Protection Board (Raad voor de Kinderbescherming) filed a request with the District Court (kantongerecht) of Lelystad for the applicant nevertheless to be awarded parental authority (ouderlijk gezag) over his daughter Georgia.
On 18 February 1999 the District Court judge awarded the applicant parental authority over his daughter Georgia and issued a supervision order (ondertoezichtstelling) whereby a child care organisation was charged with providing the applicant and his daughter the necessary support.
On 14 April 2000 the Aliens Department (Vreemdelingendienst) of Almere confiscated the children’s passports and ordered them to leave the country.
Article 1 of the Aliens Law (Vreemdelingenwet) provides that a provisional residence visa (machtiging tot voorlopig verblijf) is required for an alien who wishes remain in the Netherlands for a period of more than three months.
The policy for admission for family reunification purposes is laid down in Chapter B1/5 of the Aliens Circular (Vreemdelingencirculaire). This provides, insofar as relevant, that a residence permit for the purposes of family reunification may be granted to a parent of Dutch nationality with minor children, when the children factually belong to his/her family and family ties with one of the parents already existed abroad. Family ties are considered to have definitely ceased to exist in case of long-term integration of the child into another family while the parent(s) no longer exercise parental authority and no longer provide for the cost of upbringing and care of the child.


ITEMID: 001-85630
LANGUAGEISOCODE: ENG
RESPONDENT: CZE
BRANCH: ADMISSIBILITY
DATE: 2008
DOCNAME: HROMJAK v. THE CZECH REPUBLIC
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Peer Lorenzen;Rait Maruste;Renate Jaeger;Snejana Botoucharova
TEXT: The applicant, Mr Josef Hromják, is a Czech national who was born in 1934 and lives in Prostějov. He was represented before the Court by Mr L. Salaj, a lawyer practising in Prostějov. The Czech Government (“the Government”) were represented by their Agent, Mr V.A. Schorm, from the Ministry of Justice.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 29 April 1997 the applicant and his father lodged an action with the Jeseník District Court (okresní soud) seeking to determine the title to certain real estate.
It appears that the proceedings are still pending.
On 15 January 2007 the applicant applied for compensation pursuant to Act no. 82/1998 as amended.
In a letter of 22 February 2007 the Ministry of Justice informed the applicant that his application had been accepted, that it had been found that his right to a determination of his civil claim within a reasonable time had been violated and that he had been awarded a sum of CZK 72,000 (EUR 2,769) as just satisfaction.
On 12 January 2007 the applicant informed the Registry that he had brought a civil action against the Ministry of Justice in the Prague 2 District Court (obvodní soud) under section 15(2) of Act no. 82/1998 as amended seeking to be paid CZK 428,000 (EUR 16,464) as a remainder of his compensation claims which had not been granted by the Ministry.
The relevant domestic law and practice concerning remedies for the allegedly excessive length of judicial proceedings are set out in the Court’s decision in the case of Vokurka v. Czech Republic, no. 40552/02 (dec.), §§ 11-24, 16 October 2007).


ITEMID: 001-57515
LANGUAGEISOCODE: ENG
RESPONDENT: SWE
BRANCH: CHAMBER
DATE: 1989
DOCNAME: CASE OF LANGBORGER v. SWEDEN
IMPORTANCE: 2
CONCLUSION: Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Impartial tribunal;Independent tribunal;Public hearing;Public judgment);No violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for home);No violation of Article 11 - Freedom of assembly and association (Article 11-1 - Freedom of association);No violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions);Pecuniary damage - claim dismissed (Article 41 - Pecuniary damage;Just satisfaction);Non-pecuniary damage - finding of violation sufficient (Article 41 - Non-pecuniary damage;Just satisfaction)
JUDGES: C. Russo;J.A. Carrillo Salcedo;N. Valticos
TEXT: 7. Mr Rolf Langborger is a Swedish national born in 1922. He is a consultant engineer and resides at Solna, a town in the immediate vicinity of Stockholm.
On 1 October 1982 he rented an apartment. The lease contained a "negotiation clause" (förhandlingsklausul, see paragraph 16 below) which was worded as follows:
"During the running of the lease the parties undertake to accept, without prior termination of the lease, the rent and other conditions agreed upon on the basis of the negotiation agreement (förhandlingsordning) in force between, on the one hand, a landlords’ union affiliated to the Swedish Federation of Property Owners (Sveriges Fastighetsägareförbund) and a landlord, who with his property is affiliated to such a union, and, on the other hand, a tenants’ union affiliated to the National Tenants’ Union (Hyresgästernas riksförbund)."
An agreement between the two unions laid down the negotiating procedure. For conducting the negotiations the tenants’ union in question received a commission of 0.3% of the rent (see paragraph 16 below).
8. The applicant was dissatisfied with the rent and with the fact that he was represented by the Tenants’ Union of the Greater Stockholm Area (hyresgästföreningen i Stor-Stockholm, "the Tenants’ Union"). He therefore gave notice of his intention to terminate the lease in accordance with Chapter 12, section 54 of the Land Act (jordabalken), with a view to having its terms altered. He proposed to the landlord the conclusion of a new agreement with a fixed rent and no negotiation clause. Following the rejection of his offer, he brought the dispute before the Rent Review Board (hyresnämnden) for Stockholm County on 23 June 1983.
9. In accordance with the legislation in force (see paragraph 19 below), the section of the Rent Review Board which examined the case was composed of a chairman and two lay assessors (intresseledamöter). At the time of his appointment, the chairman, Mr Göran Hogebrandt, held a non-permanent judicial appointment as an associate judge in the Court of Appeal. The two assessors, who were nominated respectively by the Swedish Federation of Property Owners and the National Tenants’ Union, were experts on the administration of apartment buildings and on the problems of tenants. One, Mr Jan Åke Hedin, the managing director of his own electricity business, was also the president of one of the district associations affiliated to the Stockholm Landlords’ Union (Stockholms Fastighetsägareförening, "the Landlords’ Union"). The other, Mr Gösta Gröndahl, a retired customs official, was a member of the Tenants’ Union and had previously been the president of one of the district associations for nine years.
10. The applicant first challenged the two lay assessors because they had been nominated by a landlords’ association and a tenants’ organisation (see paragraph 19 below). He considered that they could not decide his case objectively and impartially because the Tenants’ Union depended for its existence on the sums paid to it for conducting the rent negotiations (see paragraph 16, last sub-paragraph, below) and the Landlords’ Union also derived a major part of its raison d’être from its participation in these negotiations. In addition he claimed that there was a risk of discrimination on political grounds because the Tenants’ Union was socialist in outlook, whereas he was a local elected representative belonging to a moderate right wing grouping. As regards the merits, he sought the deletion of the negotiation clause from the lease and contested the amount of the rent.
11. On 17 November 1983 the Rent Review Board held a hearing at which the applicant and his representative and the landlord’s representative were present.
The chairman dismissed the applicant’s challenge because the rules governing the appointment of the lay assessors did not in themselves provide a ground for such a challenge and because there were no other grounds on which it could be based.
After having heard the views of the parties as to the merits of the case, the Rent Review Board went on to state that its decision would be available at its secretariat on 1 December 1983.
On that date it dismissed Mr Langborger’s claims. Its decision, which was communicated to him through the post, referred, inter alia, to the declarations of the competent minister during the examination of the Rent Negotiation Bill (see paragraph 16 below) regarding the discretion conferred on rent review boards in deciding whether negotiation clauses should be retained.
12. Mr Langborger appealed from this decision to the Housing and Tenancy Court (bostadsdomstolen). He relied on Articles 6, 11 and 13 (art. 6, art. 11, art. 13) of the Convention and sought a thorough examination of the challenge which he had submitted at first instance; he also challenged the lay assessors of this court. As to the merits, he repeated his claim that he should not be represented by the Tenants’ Union and that he should be permitted to fix his rent in direct negotiations with the landlord.
13. The court which examined the applicant’s appeal was composed of four members (see paragraph 23 below).
The President, Mr Hans Svahn, had, until his appointment to the Housing and Tenancy Court, presided over a Chamber of the Svea Court of Appeal and still retained this post, on a formal basis, while exercising his new function.
The other lawyer, who acted as rapporteur, Mr Hans Anderberg, remained a Rent Judge (see paragraph 19 below).
The two lay assessors had (like the assessors sitting on the Rent Review Board) been nominated by, respectively, the Swedish Federation of Property Owners and the National Tenants’ Union (see paragraph 22 below). One was an expert on the administration of apartment buildings and the other on tenants’ problems. The first, Mr Bertil Tullberg, was a titular lay assessor; before retiring he had worked for the Stockholm Landlords’ Union as legal adviser from 1943 and then as its managing director. The second, Mrs Märta Kåremo, was a salaried official of the National Tenants’ Union, where she was responsible for staff legal training. She sat on the Housing and Tenancy Court as a substitute lay assessor.
14. The landlord of the flat was represented by the same official of the Landlords’ Union who had assisted him before the Rent Review Board (see paragraph 11 above).
15. On 28 December 1983 the Housing and Tenancy Court informed Mr Langborger by letter that it considered that it might "determine the case as it was constituted at present and without a hearing".
On 23 February 1984 the rapporteur rejected the application challenging the two lay assessors. The rules governing their appointment could not in themselves constitute valid grounds for their disqualification.
On 2 April 1984 the Housing and Tenancy Court dismissed the remainder of Mr Langborger’s appeal and upheld the Rent Review Board’s decision. It gave its ruling in private, in the absence of the parties and without having held a hearing. Its decision was final.
The applicant received a photocopy of this decision through the post. On 17 April 1984 he obtained a copy of the decision of 23 February which, by error, had not yet been sent to him.
16. Section 2 of the 1978 Rent Negotiation Act (hyresförhandlingslagen, "the 1978 Act") defines the negotiation clause as a provision in a lease whereby the tenant agrees to be bound by the terms of the lease, in particular regarding the rent, as accepted by the association conducting the negotiations. It provides that this clause is introduced or retained if this is not unreasonable, having regard to the tenant’s standard of living and his opinion and to the opinion of other tenants affected by the clause.
A dispute regarding the insertion or retention of a negotiation clause may be submitted to a rent review board. According to the preparatory documents, this possibility was introduced to provide legal protection for private individuals, in particular those who were not members of the organisations which participated in the negotiations. The board may exempt the party concerned from the obligation to accept a negotiation clause; in deciding whether to do so, it must, inter alia, weigh the interest in adopting a rational approach to rent negotiations against the fundamental need for the greatest possible contractual freedom for the individual (Government Bill No. 1977/78:175, p. 130 et seq.).
Section 1 provides that these conditions are to be negotiated between, on the one hand, the landlord or the landlord and a landlords’ organisation and, on the other hand, a tenants’ organisation. The tenant - who therefore has no right to negotiate - need not be a member of the organisation. Under section 3, the system applies in principle to all the flats in a building. These negotiations, which must be conducted in the manner laid down in the Act, are not compulsory but depend on the desiderata of the parties. If one of them refuses to conclude an agreement, the dispute may be referred to the Rent Review Board.
Under section 20, the rent may incorporate the amount - a percentage of the rent agreed in the negotiations - payable to the tenants’ organisation for its role in these negotiations.
17. The principal advantage which the landlords’ associations derive from the system is that they only have to negotiate rents with the tenants’ organisations and not with the individual tenants. For their part the tenants’ organisations can exert, through their right to represent the tenants, a continuous and durable influence on the conditions of the market in rental accommodation.
At present this system applies to all accommodation owned by public organisations and to 80% of privately owned buildings comprising more than two flats.
18. Rent review boards were set up by the 1973 Lease Review Boards and Rent Review Boards Act (lag 1973:188 om arrendenämnder och hyresnämnder, the "1973 Act"). They hear, inter alia, disputes on rents arising in connection with the provisions of Chapter 12 of the Land Act.
19. Under section 5, each rent review board is composed of a chairman - referred to as a Rent Judge - and two lay assessors, one of whom must be familiar with the problems of the administration of property and the other with those of tenants.
The chairman is appointed by the Government or by an authority delegated by them, on the recommendation - which is always requested, except in three specific cases - of the Judicial Appointments Recommendation Board (tjänsteförslagsnämnd). He must have legal training and his post is full-time.
The lay assessors are appointed by the National Board of the Judiciary (Domstolsverket) for a term of office of three years, which is generally renewed. Under section 6 para. 2 of the 1973 Act, the representative organisations of the housing sector (essentially the Swedish Federation of Property Owners and the National Tenants’ Union) must be able to put forward candidates when the appointment to be made concerns their interest group. The persons selected sit in a personal capacity and not as the representatives of their organisations.
The lay assessors are not designated in advance for each case, but carry out their functions in accordance with a prepared schedule; their duties are not full-time. In addition, if a board has several sections, cases are, in practice, allocated on a geographical basis.
20. In principle, proceedings before a rent review board are oral. They are governed by the general provisions of the Administrative Act (förvaltningslagen), although the Code of Judicial Procedure applies for certain formalities.
The board’s decisions must contain a statement of reasons and be given in public. They are pronounced on the day of the hearing or within two weeks thereof at the latest. A copy is sent to the parties.
21. The Housing and Tenancy Court was set up by an Act of 1974 (lag 1974:1081 om bostadsdomstol, "the 1974 Act") and has jurisdiction for the whole of Sweden. It hears appeals lodged against the decisions of the rent review boards. Its judgments are final.
22. The court is composed of at least three lawyers ("Housing Judges"), a technical assessor - who in certain cases replaces one of the lawyers - and a maximum of twelve lay assessors. All the members are appointed by the Government for a term of office of three years which is renewable. The lawyer members are, in general, judges, while the lay assessors are experts on the housing market. An identical nomination procedure to that operating for the appointment of lay assessors to rent review boards (see paragraph 19 above) applies.
23. The court is always presided over by a lawyer. It can sit with seven members or, as in this instance, with four. In the latter case, there must be two housing judges and two lay assessors. If they are unable to reach a majority decision, the president has a casting vote.
The proceedings are written, but a hearing may be held if that appears to be necessary for the purposes of the investigation. In some cases argument is taken on a specific point, while in others it concerns the case as a whole.
The Housing and Tenancy Court applies the general provisions of the Code of Judicial Procedure. Except in certain cases - which are not relevant here - its judgments are given in public. If the court cannot give a decision at a hearing, it makes the text thereof available to the parties at the registry and communicates to them a copy by post.
24. The Supreme Court (Högsta domstolen) has had occasion to rule on the independence and impartiality of a lay assessor who had to sit in a case involving the association which had nominated him (judgment of 21 September 1982, case no. Ö 600/81, Hyresgästföreningen Kroken, in Nytt Juridiskt Arkiv (NJA), 1982, p. 564). It held that there was no ground for allowing the challenge.
The Supreme Court first considered the lay assessors’ position in general. It pointed out that their presence was "designed to ensure that there were persons on the court who are well acquainted with the questions with which the court has to deal and who can, in an authoritative way, express the ideas of the interest groups concerned."
It held that:
"... the fact that a member, generally speaking, represents a certain interest group does not mean that he is biased when dealing with a case where one of the parties belongs to this interest group. As was stressed in the preparatory documents (NJA II 1974, p. 546), it is not intended that the lay assessors in their capacity as judges should feel bound by the interests which they can be said to represent. They should, like the other members, carry out their duties as independent judges and not as representatives of party interests."
Turning then to the case at hand, it rejected the challenge which was based on "the viewpoint that every member who is closely linked to the tenants’ movement, for that reason alone, is biased when dealing with such a case".
In setting out its reasoning the Supreme Court said inter alia:
"... it should first be pointed out that it is not the task of the lay assessors of the Housing and Tenancy Court to represent their organisations. They should represent the whole interest group in question without regard to their involvement in a particular organisation. The legislation is obviously based on the assumption that the lay assessors will be able to deal impartially with disputes even where the interests of their organisation are directly at issue, and it is not compatible with the provisions of the Act generally to regard members attached to an organisation as biased in such disputes."
The Court added however:
"there may of course be grounds for challenging a member of the court if he has been involved in the dispute before the court."
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1
NON_VIOLATED_ARTICLES: 11
8
P1
NON_VIOLATED_PARAGRAPHS: 11-1
8-1
P1-1
NON_VIOLATED_BULLETPOINTS: P1-1-1


ITEMID: 001-110144
LANGUAGEISOCODE: ENG
RESPONDENT: SWE
BRANCH: GRANDCHAMBER
DATE: 2012
DOCNAME: CASE OF GILLBERG v. SWEDEN
IMPORTANCE: 2
CONCLUSION: Inapplicable (Article 10-1 - Freedom of expression);Inapplicable (Article 8-1 - Respect for private life;Article 8-2 - Interference)
JUDGES: Corneliu Bîrsan;Dean Spielmann;Egbert Myjer;Elisabet Fura;Elisabeth Steiner;Françoise Tulkens;Jean-Paul Costa;Karel Jungwiert;Kristina Pardalos;Ledi Bianku;Mihai Poalelungi;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä;Paulo Pinto De Albuquerque
TEXT: 9. The applicant was born in 1950 and lives in Gothenburg.
10. He is a professor, specialising in child and adolescent psychiatry, at the University of Gothenburg.
11. 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 cases of AttentionDeficit 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 fortyone preschool 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 file, called the Gothenburg study, was voluminous and consisted of a large number of records, test results, interview replies, questionnaires and video and audio tapes. It contained a very large amount of privacy-sensitive data about the children and their relatives. Several doctoral theses have been based on the 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 subsequently took over responsibility for completing the study.
12. The applicant alleged that the Ethics Committee of the University of Gothenburg had made it a precondition in their permits that sensitive information about the individuals participating in the study would be accessible only to the applicant and his staff and that he had therefore promised absolute confidentiality to the patients and their parents. That fact was disputed by the Government.
13. Two permits were issued by the Ethics Committee of the University of Gothenburg, on 9 March 1984 and 31 May 1988 respectively, consisting of one page each and indicating, among other things, the dates of application (respectively 26 January 1984 and 24 March 1988), the researchers involved in the project, the name of the project and the date of approval; they bore the signatures of the chairman and the secretary of the Ethics Committee. They contained no specific requirements and no reference to “secrecy” or “absolute secrecy”.
14. In a letter of 17 February 1984 to the parents of the children participating in the study, the applicant stated, inter alia:
“All data will be dealt with in confidentiality and classified as secret. No data processing that enables the identification of your child will take place. No information has been provided previously or will be provided to teachers about your child except that when starting school she/he took part in a study undertaken by Östra Hospital, and its present results will, as was the case for the previous study three years ago, be followed up.”
15. A later undated letter from the applicant to the participants in the study included 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.”
16. 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 (Sekretesslagen; SFS 1980:100). She had no interest in the personal data as such but only in the method used in the research and the evidence the researchers had for their conclusions. Her request was refused by the University of Gothenburg on 27 February 2002 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, might harm an individual or persons related to that individual. An appeal against the decision was lodged with the Administrative Court of Appeal (Kammarrätten i Göteborg), which referred 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 the data. The University of Gothenburg again refused the request 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 again appealed against the decision to the Administrative Court of Appeal.
17. 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 should be exposed to independent 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.
18. 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.
19. The University of Gothenburg’s request to the Supreme Administrative Court (Regeringsrätten) for relief for substantive defects (resning) was refused on 4 April 2003.
20. In vain the applicant and some of the individuals participating in the study also applied to the Supreme Administrative Court for relief for substantive defects. Their requests were refused on 4 April, 16 May and 22 July 2003 respectively, because they were not considered to be party to the case (bristande talerätt).
21. In the meantime, 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.
22. 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 2003 criticised the University of Gothenburg, notably regarding the delays in replying to the request for access.
23. 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 of access, which could only be imposed if they were designed to remove a given risk of damage, and that a condition should be framed to restrict the recipient’s right of disposal over the data. Thereafter, 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 E could generally maintain his competence as a paediatrician.
24. 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.
25. In the meantime, in a letter of 14 August 2003 to the applicant, the ViceChancellor of the university stated that, by virtue of the judgments of the Administrative Court of Appeal, K and E were entitled to immediate access to the documents on the conditions specified. Furthermore, by decision of the university, K and E were to be given access to the documents on the university’s premises on a named street and the documents therefore had to be moved there from 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, if necessary, to ensure that all the keys to the rooms where the material was kept were delivered to a person P.
26. 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.
27. 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.
28. 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.
29. On 18 October 2003 the applicant had a meeting with the Vice-Chancellor of the University of Gothenburg about the case. Moreover, in autumn 2003 the applicant and various persons corresponded with the ViceChancellor, including a professor of jurisprudence and Assistant Director General of the Swedish Research Council who questioned the judgments of the Administrative Court of Appeal, which prompted the Vice-Chancellor to consider whether it would be possible to impose new conditions on K and E. 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 before giving him access. It stated that it had reason to believe that E’s activities and position did not justify giving him access to the material, even subject to restrictions. E thus had to demonstrate that his duties for the municipality included reviewing or otherwise acquiring information about the basic material on which the research in question was based.
30. The decisions were annulled by the Administrative Court of Appeal by two separate judgments of 4 May 2004.
31. The applicant’s request to the Administrative Supreme Court for relief for substantive defects was refused on 28 September 2004 and 1 July 2005, because he was not considered to be party to the case.
32. In the meantime, according to the applicant, the research material was destroyed during the weekend of 7 and 9 May 2004 by three of his colleagues.
33. 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).
34. 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 dayfines of SEK 800, amounting to a total of SEK 32,000 (approximately EUR 3,400).
35. The Parliamentary Ombudsman also decided to initiate criminal proceedings against the Chair of the Board of Gothenburg University, but the charges were later dismissed.
36. 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 given a suspended sentence and fined.
37. On appeal, on 8 February 2006 the applicant’s conviction and sentence were upheld by the Court of Appeal (Hovrätten för Västra Sverige) in the following terms:
General observations on the university’s management of the case
“In its two initial judgments of 6 February 2003 the Administrative Court of Appeal held 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 of 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] letters of 14 August 2003 to [the applicant] and of 1 September 2003 to K and E show that the university administration had understood that it was incumbent on the university to release the documents without delay.
The promptness required by 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 of 11 August 2003 and until 7 May 2004, when the material is said to have been destroyed, [the applicant] in his capacity as head of the Department of Child and Adolescent Psychiatry, 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 not only refused to hand over the documents in person but also refused to make them available to the university administration.
The research material was the property of the university and hence to be regarded as in the public domain. It was stored in 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 to hand over the documents in person. However, it was incumbent upon him to make the documents available for removal in accordance with the instructions he had received from the university.
[The applicant] has protested that he did not consider that there was any serious intent behind the instruction he received from the [Vice-Chancellor] on 14 August 2003. Here he has referred in particular to the meeting on 18 August 2003 and to the fact that P did not follow up his visit to the department and that he received no new directive to make the material available.
[The Vice-Chancellor], however, has stated that on no occasion did he withdraw the instructions issued on 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 that 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 action required to comply with the judgments.
[The applicant] has stated that he was never prepared to participate in the release of the documents to K and E. His actions were, in other words, intentional and their result was that K and E were categorically denied a right that is guaranteed by the Constitution and that is also of fundamental importance in principle. All things considered, the Court of Appeal finds that [the applicant’s] conduct means that he disregarded the obligation that applied to him as head of department in such a manner that the offence of misuse of office should be considered. [The applicant] has however also objected that his conduct should be regarded as excusable in view of the other considerations that he had to bear in mind.
He has thus claimed that in the situation that had arisen he was prevented by medical ethics and research ethics from disclosing information about the participants in the study and their relatives. He referred in particular to international declarations drawn up by 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 them 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, and 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 conduct 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 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, in the following terms: “All data will be dealt with in confidence and classified as secret. No data processing that enables the identification of your child will take place. No information has been provided previously or will be provided to teachers about your child except that when starting school she/he took part in a study undertaken by 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 the 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.
38. Leave to appeal to the Supreme Court was refused on 25 April 2006.
39. The principle of public access to official documents (offenlighetsprincipen) 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 the public and the media to exercise scrutiny 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 affairs and, thereby, to maintaining the legitimacy of the democratic system (see Govt. Bill 1975/76:160 pp. 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 is 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).
40. 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. If the document does not relate to any specific matter, it is “drawn up” when it has been finally checked or has otherwise received its final form. As research is considered to be an activity in its own right (faktiskt handlande) (see, for example, the Chancellor of Justice, 1986 p. 139), it cannot be said to relate to any specific matter. This means, in turn, that research material, as a rule, is “drawn up” and thereby official, as soon as it has been finally checked or otherwise received its final form. It could be added that preliminary outlines, drafts, and similar documents enumerated in 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).
41. 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 person requesting access 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.
42. 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.
43. 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 pp. 72 et seq. and Govt. Bill 1979/80:2, Part A, pp. 48 et seq.). The special act of law referred to is the Secrecy Act. 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, or to make similar arrangements.
44. 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). The latter provisions limit the right of access to official documents provided for in the Freedom of the Press Act (Tryckfrihetsförordningen, SFS 1949:105). They relate to prohibitions on disclosing information, irrespective of the manner of disclosure. The question of whether secrecy should apply to information contained in an official document cannot be determined in advance, but must be examined each time a request for access to a document is made. Decisive for this issue is whether making a document available could imply a certain risk of harm. The risk of harm is defined in different ways in 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 is 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).
45. If a public authority deems that such a risk of loss, harm, or other inconvenience which, pursuant to a provision on secrecy, constitutes an obstacle to information being communicated to a private subject, can be removed by imposing a restriction limiting the private subject’s right to re-communicate or use the information, the authority shall impose such a restriction when the information is communicated (Chapter 14, Section 9, of the Secrecy Act). As an example of such a restriction, the preparatory notes mention prohibiting the dissemination of the content of a document or the publication of secret information contained in a document (see Govt. 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 that restriction (see Chapter 20, Section 3, of the Penal Code).
46. A request to examine an official document must 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 promptness 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 person seeking access 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 must be made available, its judgment is not open to appeal by the public authority in question, or by private subjects who consider that harm would be inflicted on them as a consequence of access to the document being granted (see RÅ 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 an institution’s request for relief for substantive defects).
47. The principle of public access to official documents is applicable to all activities within the public sector and every public official is obliged to be acquainted with the laws and regulations in this area. This is in particular the case where a certain official – following a special decision or otherwise – has the duty to examine requests for access to official documents (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 usually 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, Verksförordningen SFS 1995:1322, applicable at the relevant time). Irrespective of a public official’s particular competence or power under the regulations of the authority in question, he or she has a general duty to perform the tasks that are part of his or her official duties. As previously mentioned, this duty involves the obligation to assist in making official documents available forthwith, or as soon as possible, to persons who are considered to have the right of access to them under the legislation described above.
48. By virtue of Chapter 20, Article 1, of the Penal Code a person who, in the exercise of public authority, by act or by omission, intentionally or through carelessness, disregards the duties of his office, will be sentenced for misuse of office (tjänstefel). The provision reads as follows:
“A person who, in the exercise of public authority, by act or by omission, intentionally or through carelessness, disregards the duties of his office, shall be sentenced for misuse of office to a fine or a maximum term of imprisonment of 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.”
49. A suspended sentence may be imposed by the courts for an offence for which a fine is considered an inadequate penalty, and such a sentence is, as a general rule, combined with day-fines. A maximum total of 200 day-fines may be imposed. When determining the amount, account is taken of the economic circumstances of the accused, but a dayfine may not exceed 1,000 Swedish kronor (SEK) (Chapter 25, Section 2, Chapter 27, Sections 1 and 2, and Chapter 30, Section 8 of the Penal Code).
50. In Sweden a suspended sentence does not refer to any specific number of days of imprisonment. Under Chapter 27 of the Penal Code a suspended sentence is always subject to a probationary period of two years. A suspended sentence may be linked to specific conditions. If the person convicted commits a new crime during the probationary period the courts may, having due regard to the nature of the new crime, revoke the suspended sentence and impose a joint sanction for the crimes (Chapter 34 of the Penal Code).
51. 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 in the public administration. It is their particular duty to ensure that public authorities and their staff comply with the laws and other statutes governing their actions. An Ombudsman exercises supervision, either on complaint from individuals or of his or her own motion, by carrying out inspections and other investigations which he or she deems necessary. The examination of a matter is concluded by a decision in which the Ombudsman states his or her opinion whether the measure taken by the authority contravenes the law or is otherwise wrongful or inappropriate. The Ombudsmen may also make pronouncements aimed at promoting uniform and proper application of the law. An Ombudsman’s decisions are considered to be expressions of his or her personal opinion. They are not legally binding upon the authorities. However, they do have persuasive force, command respect and are usually followed in practice. An 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 to the competent authority for disciplinary measures. The Ombudsman may attend deliberations of the courts and the administrative authorities and is entitled to have access to their minutes and other documents.
52. The Helsinki Declaration, adopted by the 18th World Medical Association’s General Assembly 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.
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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.
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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.
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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. ...