ITEMID: 001-101562
LANGUAGEISOCODE: ENG
RESPONDENT: SWE
BRANCH: CHAMBER
DATE: 2010
DOCNAME: CASE OF GILLBERG v. SWEDEN
IMPORTANCE: 3
CONCLUSION: Remainder inadmissible;No violation of Art. 8;No violation of Art. 10
JUDGES: Alvina Gyulumyan;Elisabet Fura;Ineta Ziemele;Josep Casadevall;Luis López Guerra
TEXT: 6. The applicant was born in 1950 and lives in Gothenburg.
7. He is a professor, specialising in child and adolescent psychiatry, at the University of Gothenburg.
8. In the period between 1977 and 1992 a research project was carried out at the University of Gothenburg in the field of neuropsychiatry focusing on the incidences of 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 papers, called the Gothenburg study, were voluminous and consisted of a large number of records, test results, interview replies, questionnaires and video and audio tapes. It contained a very large amount of privacy-sensitive data about the children and their relatives. Several doctoral theses have been based on the Gothenburg study. The material was stored by the Department of Child and Adolescent Psychiatry, of which the applicant was director. The project was originally set up and started by other researchers but the applicant had subsequently taken over the responsibility for completing the study.
9. The applicant alleged that the Ethics Committee of the University of Gothenburg in their permits had made it a precondition that sensitive information about the individuals participating in the study would be accessible only to the applicant and his staff and that therefore the applicant promised absolute confidentiality to the patients and their parents.
10. The Government maintained in their observations that they had been unable to find the permits referred to by the applicant, thus they could not confirm that the permits contained requirements of “absolute secrecy”. Instead the Government had located four research applications to the Ethics Committee of the University of Gothenburg (dated 13 January 1978, 26 January 1984, 9 October 1984 and 24 March 1988) according to which the applicant bore the main responsibility for the study in 1988 and, together with his wife, also in 1984, but not for the study in 1978. Concerning the issue of secrecy, the research applications can be summarised as follows: In the first application, it was stated that it would not be possible to identify individual children and that the research team did not intend to register any case records. In the first of the two applications submitted in 1984, it was stated that the project leader - being a medical doctor - was bound by professional secrecy and was to be responsible for the registers set up within the research project, that the registers were to be made non-personalised after the study had been carried out and that the results were to be presented in a way that would make it impossible to identify different individuals. Furthermore, if data registers were to be used, the Data Inspection Board’s (Datainspektionen) instructions were to be followed. In an additional application from the same year, concerning inter alia the use of social registers, it was stated that it would not be possible to identify different individuals through the data processing that was to be carried out and that only the project leader was to have access to the identification code. The application from 1988 contains the same language as the application submitted in January 1984.
11. Before the Court, enclosed in his observations, the applicant submitted two permits by the Ethics Committee of the University of Gothenburg of respectively 9 March 1984 and 31 May 1988.
12. Both permits bore signatures of approval on behalf of the Ethics Committee of the University of Gothenburg on the applications of 26 January 1984 and 24 March 1988, mentioned above. The submitted permits contained no reference to “absolute secrecy”.
13. The assurance of confidentiality given to the participants in the study in 1984 had the following wording:
“All data will be dealt with in confidence and classified as secret. No data processing that enables the identification of your child will take place. No information has been provided previously or will be provided to teachers about your child except that when starting school she/he took part in a study undertaken by Östra Hospital and its present results will, as was the case for the previous study three years ago, be followed up.”
14. 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.”
15. In February 2002, a sociologist K requested access to the background material. She was a researcher at Lund University and maintained that it was of great importance to have access to the research material and that it could, without risk of damage, be released to her with conditions under Chapter 14, section 9, of the Secrecy Act. She had no interest in the personal data as such but only in the method used in the research and the evidence the researchers had for their conclusions. Her request was refused on 27 February 2002 by the University of Gothenburg because K had not shown any connection between the requested material and any research and on the ground that the material contained data on individuals’ health status which, if disclosed, could be assumed to harm an individual or persons related to that individual. The decision was appealed against to the Administrative Court of Appeal (Kammarrätten i Göteborg), which directed the matter to the University of Gothenburg to examine whether the material could be released after removal of identifying information or with a condition restricting K’s right to pass on or use data. The University of Gothenburg refused the request again on 10 September 2002 on the ground that the data requested was subject to secrecy, that there was no possibility of releasing the material after removal of identifying information, nor was there sufficient evidence to conclude that the requested material could be released with conditions. K appealed again against the decision to the Administrative Court of Appeal.
16. In the meantime, in July 2002, a paediatrician E, also requested access to the material. He submitted that he needed to keep up with current research, that he was interested in how the research in question had been carried out and in clarifying how the researchers had arrived at their results and that it was important to the neuropsychiatric debate that the material could be exposed to independent and critical examination. His request was refused by the University of Gothenburg on 30 August 2002 for the same reasons as its refusal to K, a decision against which E appealed to the Administrative Court of Appeal.
17. By two separate judgments of 6 February 2003, the Administrative Court of Appeal found that K and E had shown a legitimate interest in gaining access to the material in question and that they could be assumed to be well acquainted with the handling of confidential data. Therefore, access should be granted to K and E, but subject to conditions made by the University of Gothenburg in order to protect the interests of the individuals concerned in accordance with various named provisions of the Secrecy Act (Sekretesslagen, 1980:100).
18. The University of Gothenburg’s application for a review by the Supreme Administrative Act was refused.
19. In vain the applicant and some of the individuals participating in the study requested relief for substantive defects (resning) to the Supreme Administrative Court (Regeringsrätten), which was refused on 4 April 2003 because they were not considered to be party to the case (bristende talerätt).
20. 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.
21. K and E appealed against certain of the conditions imposed by the University of Gothenburg. They also reported the University of Gothenburg’s handling of the case to the Parliamentary Ombudsman, which in decisions of 10 and 11 June 2000 criticised the University of Gothenburg, notably as to the length of the proceedings for replying to the request for access.
22. In two separate judgments of 11 August 2003, the Administrative Court of Appeal lifted some of the conditions imposed by the university. It pointed out that in the judgments of 6 February 2003, K and E had already been given the right of access to the requested documents and that the only matter under examination was the conditions set up and that such could only be imposed if they were designed to remove a given risk of damage and that a condition should be framed to restrict the recipient’s right of disposal over the data. Thereafter, six conditions were set regarding K’s access, including that the data was only to be used within the Swedish Research Council funded research project called “The neurological paradigm: on the establishment of a new grand theory in Sweden” which K had specified before the Administrative Court of Appeal, that she was not allowed to remove copies from the premises where she was given access to the documents and that transcripts of released documents containing data on psychological, medical or neurological examinations or treatment, or concerning the personal circumstances of individuals and notes concerning such examinations, treatment or circumstances from a document released to her, would be destroyed when the above research project was completed and at the latest by 31 December 2004. Six similar conditions were also imposed on E, including that data in the released documents referring to psychological, medical, psychiatric or neurological examinations or treatment, and data in the released documents concerning the personal circumstances of an individual was to be used for examination of how the researchers who participated in the research project in which the documents had been used had arrived at their results and conclusions and so that he could generally maintain his competence as a paediatrician.
23. 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.
24. 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 by the Administrative Court of Appeal, E and K were entitled to immediate access to the documents on the conditions specified. Furthermore, by decision of the university, E and K were to be given access to the documents on the university’s premises on a named street and the documents therefore had to be moved there from the Department of Child and Adolescent Psychiatry without delay. The letter stated that the transportation of the documents was to begin on 19 August 2003 at 9 a.m. The applicant was requested to arrange for the documents to be available for collection at that time and that if necessary he should also ensure that all the keys to the rooms where the material was kept were delivered to a person P.
25. 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.
26. 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.
27. 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.
28. In autumn 2003, the applicant and various persons corresponded with the vice-chancellor of the University of Gothenburg, including a professor of jurisprudence and Assistant Director General of the Swedish Research Council who questioned the judgments by the Administrative Court of Appeal, which prompted the vice-chancellor to consider whether it would be possible to impose new conditions. The case was discussed within the University Board and subsequently by decision of 27 January 2004 the University of Gothenburg decided to refuse to grant access to K because in the light of a memorandum drawn up on 12 March 2003 by the Swedish Research Council there was no connection between K’s research and the research project that she had specified before the Administrative Court of Appeal. Likewise, in a decision of 2 February 2004 the university decided to impose a new condition on E in order to give him access. It stated that it had reason to believe that E did not conduct activities or hold a position that justified allowing him access to the material, even subject to restrictions. E thus had to demonstrate that his duties for the municipality included reviewing or otherwise acquiring information about the basic material on which the research in question was based.
29. The decisions were annulled by the Administrative Court of Appeal by two separate judgments of 4 May 2004.
30. The applicant’s request to the Administrative Supreme Court for relief for substantive defects was refused on respectively 28 September 2004 and 1 July 2005, because he was not considered to be party to the case.
31. In the meantime, according to the applicant, the research material was destroyed during the weekend of 8 and 9 May 2004 by three of his colleagues.
32. On 18 January 2005 the Parliamentary Ombudsman decided to initiate criminal proceedings against the applicant and by a judgment of 27 June 2005 the District Court (Göteborgs Tingsrätt) convicted the applicant of misuse of office pursuant to Chapter 20, Article 1 of the Penal Code (Brottsbalken). The applicant was given a suspended sentence and ordered to pay fifty day-fines of 750 Swedish kronor (SEK), amounting to a total of SEK 37,500, (approximately 4,000 Euros (EUR). The vice-chancellor of the university was also convicted of misuse of office for having disregarded, through negligence, his obligations as vice-chancellor by failing to ensure that the documents were available for release as ordered in accordance with the judgments of the Administrative Court of appeal. The vice-chancellor was sentenced to forty dayfines of SEK 800, amounting to a total of SEK 32,000 (approximately EUR 3,400). The Parliamentary Ombudsman had also decided to initiate criminal proceedings against the Chair of the Board of Gothenburg University, but the charges were later dismissed. Finally, by a judgment issued on 17 March 2006, the three officials who had destroyed the research material were convicted of the offence of suppression of documents and were sentenced to a conditional sentence and fines.
33. On appeal, on 8 February 2006 the applicant’s conviction and sentence were upheld by the Court of Appeal (Hovrätten för Västra Sverige) which stated as follows:
General observations on the university’s management of the case
“In its two initial judgments of 6 February 2003 the Administrative Court of Appeal laid down that K and E were entitled to have access to the documents requested. In its two subsequent judgments of 11 August 2003 the Administrative Court of Appeal decided on the conditions that would apply in connection with the release of the documents to them. The judgments by the Administrative Court of Appeal had therefore settled the question of whether the documents were to be released to K and E once and for all.
At the hearing in the Administrative Court of Appeal, the university had the opportunity to present reasons why the documents requested should not be released to K and E. Once the judgments, against which no appeal could be made, had been issued in February 2003, whether or not the university considered that they were based on erroneous or insufficient grounds had no significance. After the February judgments the university was only required to formulate the conditions it considered necessary to avoid the risk of any individuals sustaining harm through the release of the documents. Subsequently the university had the opportunity to present its arguments to the Administrative Court of Appeal for the formulation of the conditions it had chosen. After the Administrative Court of Appeal had determined which conditions could be accepted, the question of the terms on which [K and E] could be allowed access to the documents requested was also settled once and for all. There was then no scope for the university to undertake any new appraisal of K’s and E’s right of access to the documents.
Therefore, in the period referred to in the indictment [from 11 August 2003 until 7 May 2004] it was no longer the secrecy legislation that was to be interpreted but the judgments of the Administrative Court of Appeal. Their contents were clear. [The vice-chancellor’s] letter of 14 August 2003 to [the applicant] and to K and E of 1 September 2003 show that the university administration had understood that it was incumbent on the university to release the documents without delay.
The promptness required by the Freedom of the Press Act in responding to a request for access to a public document should in itself have caused the university to avoid measures leading to further delay in releasing the documents. Despite this, in its interpretation of the conditions and in laying down additional conditions, the university made it more difficult for K and E to gain access to the documents.
The applicant’s liability
The prosecutor has maintained that after the judgments of the Administrative Court of Appeal 11 August 2003 and until 7 May 2004, when the material is said to be destroyed, the applicant in his capacity as head of the Department of Child and Adolescent Psychiatry, has wilfully disregarded the obligations of his office by failing to comply with the judgments of the Administrative Court of Appeal and allow [E and K] access to the documents. According to the indictment, the applicant in so doing has not only refused to release the documents on his own account but also refused to make the documents available to the university administration.
The research material was the property of the university and hence to be regarded as in the public domain. It was stored in the Department of Child and Adolescent Psychiatry, where [the applicant] was the head. [The vice-chancellor’s] letter of 14 August 2003, to which copies of the judgments of the Administrative Court of Appeal relating to the conditions were attached, made it clear to [the applicant] that the material in question must be released. As head of the department, [the applicant] was responsible for making the material available to [K and E]. [The applicant’s awareness of his immediate responsibility is revealed not least by the instructions that he gave to [L] before the visit of [P] not to allow the university administration access to the material. It is also shown by [the applicant’s] written reply on 18 August 2003 to [the vice-chancellor].
Through [the vice-chancellor] the university had instructed [the applicant] to release the material to the university, so that it could be moved to premises where K and E could examine it. In view of this, the Court of Appeal, like the District Court, does not consider that [the applicant] can be held culpable because he refused on his own account to hand over the documents. However, it was incumbent upon him to make the documents available for removal in accordance with the instructions he had received from the university.
[The applicant] has protested that he did not consider that there was any serious intent behind the instruction he received from the [vice-chancellor] on 14 August 2003. Here he has referred in particular to the meeting on 18 August 2003, to the fact that P did not follow up his visit to the department and that he received no new directive to make the material available.
[The vice-chancellor], however, has stated that on no occasion did he withdraw the instructions issued on 14 August 2003, and that it must have been quite clear to [the applicant] that they continued to apply, even though they were not explicitly repeated. According to the vice-chancellor, nothing transpired at the meeting on 18 August 2003 that could have given [the applicant] the impression that these instructions no longer applied or that they were not intended seriously. [The vice-chancellor’s] statement in this respect has been confirmed by the Director at the Vice-Chancellor’s office, W. It is further borne out by the fact that after the meeting on 18 August 2003 W was given the task of drawing up a complaint to the Government Disciplinary Board for Higher Officials on the subject of [the applicant’s] refusals and that the latter was aware that a complaint of this kind was being considered. In addition, it can be seen from a number of e-mails from [the applicant] to [the vice-chancellor] that during the entire autumn he considered that he was required to hand over the documents and that he maintained his original refusal to obey his instructions. It has also been shown that when the Board met on 17 December 2003, [the vice-chancellor] was still considering making a complaint to the Disciplinary Board. Finally, [a witness, AW] has testified that at a meeting with [the applicant] shortly after the beginning of 2004, when asked whether he still persisted in his refusal, he confirmed that this was the case.
All things considered, the Court of Appeal finds that it has been shown that [the applicant] was aware of the instructions to make the material available to the administration applied during the entire period from when he learnt about the judgments of the Administrative Court of Appeal on 14 August 2003. It was incumbent on him to take the actions required to comply with the judgments.
[The applicant] has stated that he was never prepared to participate in the release of the documents to K and E. His actions were, in other words, intentional and their result has been that K and E were categorically denied a right that is guaranteed by the Constitution and that is also of fundamental importance in principle. All things considered, the Court of Appeal finds that [the applicant’s] actions mean that he disregarded the obligation that applied to him as head of department in such a manner that the offence of misuse of office should be considered. [The applicant] has however also objected that his actions should be regarded as excusable in view of the other considerations that he had to bear in mind.
He has thus claimed that in the situation that had arisen he was prevented by medical ethics and research ethics from disclosing information about the participants in the study and their relatives. He referred in particular to international declarations drawn up by the World Medical Association and to the Convention.
The nature of the international declarations agreed on by the World Medical Association is not such as to give precedence over Swedish law. [The applicant’s] objections on the basis of the contents of these declarations therefore lack significance in this case.
Article 8 of the Convention lays down that everyone has the right to respect for his or her private and family life, home and also that this right may not be interfered with by a public body except in certain specified cases. The provisions of the Secrecy Act are intended, in accordance with Article 8 of the Convention, to protect individuals from the disclosure to others of information about their personal circumstances in cases other than those that can be regarded as acceptable with regard to the right to insight into the workings of the public administration. These regulations must be considered to comply with the requirements of the Convention and the judgments of the Administrative Court of Appeal lay down how they are to be interpreted in this particular case. [The applicant’s] objection that his action was excusable in the light of the Convention cannot therefore be accepted.
[The applicant] has also asserted that he risked criminal prosecution for breach of professional secrecy, if he released the documents to [K and E]. However, the judgments of the Administrative Court of Appeal had determined once and for all that the secrecy Act permitted release of the documents. For this reason there was of course no possibility of prosecution for breach of professional secrecy which, in the opinion of the Court of appeal, [the applicant] must have realised.
[The applicant] has also stated that he was bound by the assurances of confidentiality he had given to the participants in the study in accordance with the requirements established for the research project. The assurances were given in 1984 and had the following wording: “All data will be dealt with in confidence and classified as secret. No data processing that enables the identification of your child will take place. No information has been provided previously or will be provided to teachers about your child except that when starting school she/he took part in a study undertaken by Östra Hospital and its present results will, as was the case for the previous study three years ago, be followed up.” A later assurance of confidentiality had the following wording: “Participation is of course completely voluntary and as on previous occasions you will never be registered in public data records of any kind and the data will be processed in such a way that nobody apart from those of us who met you and have direct contact with you will be able to find out anything at all about you.”
The assurances of confidentiality given to those participants in the study go, at least in some respects, further than the Secrecy Acts permits. The Court of Appeal notes that there is no possibility in law to provide greater secrecy than follows from the Secrecy Act and that it is not possible to make decisions on issues concerning confidentiality until the release of a document is requested. It follows therefore that the assurances of confidentiality cited above did not take precedence over the law as it stands or a court’s application of the statutes. [The applicant’s] objections therefore have no relevance in assessing his criminal liability.
Finally, [the applicant] has claimed that his actions were justifiable in view of the discredit that Swedish research would incur and the decline in willingness to participate in medical research projects that would ensue if information submitted in confidence were then to be disclosed to private individuals. The Court of Appeal notes that there are other possibilities of safeguarding research interests, for example by removing details that enable identification from research material so that sensitive information cannot be divulged. What [the applicant] has adduced on this issue cannot exonerate him from liability.
[The applicant’s] actions were therefore not excusable. On the contrary, for a considerable period he failed to comply with his obligations as a public official arising from the judgments of the Administrative Court of Appeal. His offence cannot be considered a minor one. [The applicant] shall therefore be found guilty of misuse of office for the period after 14 August 2003, when he was informed of the judgments of the Administrative Court of Appeal. The offence is a serious one as [the applicant] wilfully disregarded the constitutional right of access to public documents. On the question of the sentence, the Court of Appeal concurs with the judgment of the District Court.
34. Leave to appeal to the Supreme Court was refused on 25 April 2006.
35. The principle of public access to official documents (offenligthetsprincipen) has a history of more than two hundred years in Sweden and is one of the cornerstones of Swedish democracy. One of its main characteristics is the constitutional right for everyone to study and be informed of the contents of official documents held by the public authorities. This principle allows for the public and the media to exercise control of the State, the municipalities and other parts of the public sector which, in turn, contributes to the free exchange of opinions and ideas and to efficient and correct management of public administration and, thereby, to maintaining the legitimacy of the democratic system (see Govt. Bill 1975/76:160 p. 69 et seq.). The principle of public access to official documents is enshrined in Chapter 2, Sections 1 and 12, of the Freedom of the Press Act. Thus, every Swedish citizen shall be entitled to have free access to official documents, in order to encourage the free exchange of opinion and the availability of comprehensive information (Chapter 2, Section 1; foreign nationals enjoy the same rights in this respect as Swedish citizens, Chapter 14, Section 5).
36. A document is official if it is held by and is regarded as having been received or “drawn up” by a public authority (Chapter 2, Sections 3 and 6-7, of the Freedom of the Press Act). A document is “drawn up”” when it is dispatched by an authority. A document that is not dispatched is “drawn up” when the matter to which it relates is finally settled by the authority in question. In case the document does not belong to any specific matter, it is “drawn up” when it has been finally checked or otherwise received its final form. As research is considered to be an activity in its own right (faktiskt handlande) (see, for example, the Chancellor of Justice, 1986 p. 139), it cannot be said to belong to any specific matter. This means, in turn, that research material, as a rule, is “drawn up” and thereby official, as soon as it has been finally checked or otherwise received its final form. It could be added that preliminary outlines, drafts, and similar documents enumerated in Chapter 2, Section 9, of the Freedom of the Press Act, are not deemed to be official unless they introduce new factual information or have been accepted for filing. Finally, there is no general requirement that a document be filed in order to be considered official, and registration does not affect the issue of whether a document is official or not (cf. Chapter 15, Section 1, of the Secrecy Act).
37. An official document to which the public has access shall be made available on request forthwith, or as soon as possible, at the place where it is held, and free of charge, to any person wishing to examine it, in such form that it can be read, listened to, or otherwise comprehended; a document may also be copied, reproduced or used for sound transmission (Chapter 2, Section 12). Such a decision should normally be rendered the same day or, if the public authority in question has to consider whether the requested document is official or whether the information is public, within a few days (see, for example, the Parliamentary Ombudsman’s decision of 23 November 2007 in case no. 5628-2006). A certain delay may also be acceptable if the request concerns very extensive material. If a document cannot be made available without disclosure of such part of it as constitutes classified material, the rest of the document shall be made available to the applicant in the form of a transcript or copy (Section 12). A public authority is under no obligation to make a document available at the place where it is held, if this presents serious difficulty.
38. An unlimited right of public access to official documents could, however, result in unacceptable harm to different public and private interests. It has therefore been considered necessary to provide exceptions. These exceptions are laid down in Chapter 2, Section 2 (first paragraph), of the Freedom of the Press Act, which reads as follows:
The right of access to official documents may be restricted only if restriction is necessary having regard to 1. the security of the State or its relations with another state or an international organisation; 2. the central fiscal, monetary or currency policy of the State; 3. the inspection, control or other supervisory activities of a public authority; 4. the interest of preventing or prosecuting crime; 5. the economic interest of the public institutions; 6. the protection of the personal or economic circumstances of private subjects; 7. the preservation of animal or plant species.
39. According to paragraph 2 of the same provision, restrictions on the right of access to official documents shall be scrupulously specified in a provision of a special act of law or, if this is deemed more appropriate in a particular case, in another act of law to which the special act refers (see, for example, Govt. Bill 1975/76:160 p. 72 et seq. and Govt. Bill 1979/80:2, Part A, p. 48 et seq.). The special act of law referred to is the Secrecy Act (Sekretesslagen; SFS 1980:100). Pursuant to such a provision, the Government may issue more detailed provisions for its application in an ordinance (förordning). Since the mandate to restrict the right of public access to official documents lies exclusively with the Swedish Parliament (Riksdag), it is not possible for a public authority to enter into an agreement with a third party exempting certain official documents from the right of public access to official documents or to make similar arrangements.
40. The Secrecy Act contains provisions regarding the duty to observe secrecy in the activities of the community and regarding prohibitions against making official documents available (Chapter 1, Section 1 of Act). In the latter respect, the provisions limit the right of access to official documents provided for in the Freedom of the Press Act (Tryckfrihetsförordningen, SFS 1949:105). The provisions relate to prohibitions against disclosing information, irrespective of the manner of disclosure. The question of whether secrecy shall apply to information contained in an official document cannot be determined in advance, but shall be examined each time a request for access to a document is made. Decisive for this issue is whether making a document available could imply a certain risk of harm. The risk of harm is defined in different ways in the Secrecy Act having regard to the interests that the secrecy is intended to protect. Thus, the secrecy may be more or less strict depending on the interests involved. The secrecy legislation has been elaborated in this way in order to provide sufficient protection, for example, for the personal integrity of individuals, without the constitutional right of public access to official documents being circumscribed more than considered necessary. In the present case, the Administrative Court of Appeal, in its judgments of 6 February 2003, found that secrecy applied to the research material under Chapter 7, Sections 1, 4, 9 and 13, of the Secrecy Act (Chapter 7 deals with secrecy with regard to the protection of the personal circumstances of individuals).
41. If a public authority deems that such risk of loss, harm, or other inconvenience, which pursuant to a provision on secrecy constitutes an obstacle to information being communicated to a private subject, can be removed by the imposition of a restriction which limits the private subject’s right to re-communicate or use the information, the authority shall impose such a restriction when the information is communicated (Chapter 14, Section 9, of the Secrecy Act). As an example of such a restriction, the preparatory notes mention a prohibition against disseminating the content of a document or against publishing secret information contained in a document (see Govt. Bill 1979/80:2, Part A, p. 349). An individual who has been granted access to a document subject to a restriction limiting the right to use the information may be held criminally liable if he or she does not respect such a restriction (see Chapter 20, Section 3, of the Penal Code).
42. A request to examine an official document shall be made to the public authority which holds the document (Chapter 2, Section 14, of the Freedom of the Press Act and Chapter 15, Section 6, of the Secrecy Act). As mentioned above, there are specific requirements of speediness regarding the handling of such requests. A decision by an authority other than the Swedish Parliament or the Government to refuse access to a document is subject to appeal to the courts - as a general rule, an administrative court of appeal - and further to the Supreme Administrative Court (Chapter 2, Section 15, of the Freedom of the Press Act; Chapter 15, Section 7, of the Secrecy Act and Sections 33 and 35 of the 1971 Administrative Court Procedure Act (Förvaltningsprocesslagen; SFS 1971:291), leave to appeal is required in the last mentioned court). Only the applicant has a right of appeal. Thus, if the Administrative Court of Appeal - contrary to the public authority holding the document in question - decides that a document shall be made available, its judgment may not be appealed against by the public authority in question, or private subjects who consider that harm would be inflicted on them as a consequence of the fact that access to the document is granted (see RÅ 2005 note 1 and RÅ 2005 ref. 88). The reason why the right of appeal has been narrowly limited is that once the competing interests have been considered by a court the legislator has given priority to the principle of public access to official documents over other private and public interests (see, for example, Govt. Bill 1975/76:160 p. 203 and RÅ 2003 ref. 18, which concerned the applicant’s request for relief for substantive defects).
43. The principle of public access to official documents is applicable to all activities within the public sector and every public official is obliged to be acquainted with laws and regulations in this area. This is in particular the case where a certain official - following a special decision or otherwise - has the duty to examine requests for access to official documents (Chapter 15, Section 6, second paragraph of the Secrecy Act). Formally, the head of the public authority has the primary responsibility to ensure that such requests are duly examined. However, the task may be delegated to other office holders within the authority and this is what is also done in practice for the purposes of the authority’s daily activities. Such delegation has to be in accordance with the regulations of the authority (Section 21 of the former Government Agencies and Institutes Ordinance, Verkförordningen SFS 1995:1322, applicable at the relevant time). Irrespective of whether a public official has certain competence or power under the regulations of the authority in question, he or she has a general duty to perform the tasks that are part of his or her official duties. As previously mentioned, this duty involves the obligation to assist in making official documents available forthwith, or as soon as possible, to persons who are considered to have the right of access to them under the legislation described above.
44. A person who in the exercise of public authority, by act or by omission, intentionally or through carelessness, disregards the duties of his office, shall be sentenced for misuse of office (tjänstefel) to a fine or imprisonment of a maximum of two years (Chapter 20, Section 1, of the Penal Code). If, having regard to the perpetrator’s official powers or the nature of his office considered in relation to his exercise of public power in other respects, or having regard to other circumstances, the act may be regarded as petty, punishment shall not be imposed. If a crime mentioned in the first paragraph has been committed intentionally and is regarded as gross, a sentence for gross misuse of office to imprisonment of a minimum of six months and a maximum of six years shall be imposed. Members of a national or municipal decision-making assembly shall not be held responsible under the provisions previously mentioned for any action taken in such capacity. Nor shall the said provisions apply if the offence is subject to a punishment under another provision of the Penal Code or some other law. Concerning the question of sanctions, a conditional sentence may be imposed by the courts for an offence for which the sanction of a fine is considered inadequate, and such a sentence shall, as a general rule, be combined with a day-fine (maximum 200 day-fines, see Chapter 27, Sections 1-2 and Chapter 30, Section 8, of the Penal Code; the day-fine may not exceed 1,000 Swedish kronor (SEK), see Chapter 25, Section 2, of the Penal Code; when determining the amount account is taken of the economic circumstances of the accused).
45. The relevant provision of the 1962 Swedish Penal Code (Brottsbalken) 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. (Law 1989:608).
46. The functions and powers of the four Parliamentary Ombudsmen are laid down in particular in Chapter 12, Section 6 of the Instrument of Government (Regeringsformen) and in the Act with Instructions for the Parliamentary Ombudsmen (Lagen med instruktion för Riksdagens ombudsmän; SF5 1986:765), their main task is to supervise the application of laws and other regulations within public administration. It is their particular duty to ensure that courts and administrative authorities observe the provisions of the Constitution regarding objectivity and impartiality and that the fundamental rights and freedoms of citizens are not encroached upon in the process of public administration. An Ombudsman exercises supervision either on complaint from individuals or of his or her own motion by carrying out inspections and other investigations which he or she deems necessary. The examination of a matter is concluded by a decision in which the Ombudsman states his or her opinion on whether the measure of the authority contravenes the law or is otherwise wrongful or inappropriate. The Ombudsmen may also make pronouncements aimed at promoting uniform and proper application of the law. An Ombudsman’s decisions are considered to be expressions of his or her own personal opinion. They are not legally binding upon the authorities. However, they are of persuasive force, command respect and are usually followed in practice. An Ombudsman may, among many other things, institute criminal proceedings against an official who has committed an offence by departing from the obligations incumbent on him or her in his or her official duties (for example, as in the present case, misuse of office). The Ombudsman may also report an official for disciplinary measures to those who have the competence to decide on such measures. The Ombudsman may be present at the deliberations of the courts and the administrative authorities and is entitled to have access to their minutes and other documents.
47. It follows from Chapter 3, Section 2 of the Tort Liability Act (Skadeståndslagen, SFS 1972:207) that the State is liable to pay compensation for, inter alia, financial loss caused by a wrongful act or omission in connection with the exercise of public authority. From Chapter 3, Section 3 of the Act it follows that, under certain circumstances, the State is liable to pay compensation for financial loss caused by an erroneous instruction or advice given by an authority.
48. In a judgment of 9 June 2005 (NJA 2005 p. 462), the Supreme Court found that an individual had a right to bring a civil action against the State before the national courts on the ground that there had been a violation of Article 6 § 1 of the Convention because a criminal case against the individual had not been concluded within a reasonable time.
In a decision of 4 May 2007 the Supreme Court held that the principle established in NJA 2005 p. 462 also applied with regard to the rights contained in Article 5 of the Convention.
49. The Supreme Court has subsequently, in a judgment on 21 September 2007 (NJA 2007 p. 584), found that individuals have a right to bring civil suits against the State for violations of any Articles of the Convention when the State, according to the Convention, has an obligation to pay damages for the violation and such obligation cannot be based on national legislation. In the same case, the Court of Appeal also concluded, in a judgment dated 12 January 2006, that there had been a violation of Article 8 and that non-pecuniary damages should be awarded on the basis of the principle established in NJA 2005 p. 462.
50. A further Supreme Court judgment of 28 November 2007 (NJA 2007 p. 891) concerned a claim for damages against the Swedish State on the basis of an alleged violation of Article 2 of the Convention relating to the plaintiffs’ father’s suicide while in detention. The Supreme Court concluded that the case revealed no violation of Article 2 but noted that the right to an effective remedy in such a case should, in principle, include a possibility of obtaining compensation for damage.
51. Finally, in a decision of 11 October 2007, concerning a claim for damages against the Swedish State, the Chancellor of Justice (Justitskanslern) concluded that the individual concerned was entitled to compensation from the State for non-pecuniary damage on account of excessive length of civil proceedings.
52. Anyone who wishes to claim compensation from the State for financial loss, which he or she considers has been caused by a wrongful decision taken by a court or an administrative State authority, may proceed in either of the two different ways: He or she may either petition the Chancellor of Justice in accordance with Section 3 of the Ordinance on the Administration of Claims for Damages against the State (Förordningen om handläggning av skadeståndsanspråk mot staten, SFS 1995:1301), or bring a civil action against the State in the ordinary courts. No appeal lies against a decision of the Chancellor of Justice. However, if the claim is rejected, the claimant still has the possibility to institute civil proceedings before the courts.
53. The Helsinki Declaration, adopted by the 18th World Medical Association’s General Assembly, Helsinki in Finland in June 1964, with later amendments states inter alia:
NON_VIOLATED_ARTICLES: 10
8


ITEMID: 001-87590
LANGUAGEISOCODE: ENG
RESPONDENT: CZE
BRANCH: ADMISSIBILITY
DATE: 2008
DOCNAME: BATA v. THE CZECH REPUBLIC
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Karel Jungwiert;Mark Villiger;Peer Lorenzen;Rait Maruste;Renate Jaeger;Volodymyr Butkevych;Zdravka Kalaydjieva
TEXT: 1. The applicant, Mr Tomáš Jan Baťa, is a Czech and Canadian national who was born in 1914 and lives in Toronto (Canada). He was represented before the Court by Mr Uhde and Mr Holešínský, lawyers practising in Prague, and Lord Lester of Herne Hill QC. The Czech Government (“the Government”) were represented by their Agent, Mr V.A. Schorm, from the Ministry of Justice.
2. The facts of the case, as submitted by the parties, may be summarised as follows.
3. The applicant is the son of Tomáš Baťa, the founder of the Baťa Shoe Company, who conducted “Baťa, a.s. ve Zlíně”, a substantial enterprise in former Czechoslovakia (hereinafter “the company”).
4. According to the applicant, on the death of his father in 1932, he and his mother inherited 75% and 25% respectively of the company's shares. According to the Government, ownership of the shares did not pass to the applicant upon his father's death. They refer to the agreement concluded between the applicant's father and his step-uncle, Jan A. Baťa, under which the shares had been sold by the former to the latter. This was confirmed by his father's last will as interpreted by the Zlín District Court (okresní soud) in inheritance proceedings, concluded on 28 June 1933, the outcome of which was contested neither by the applicant nor his mother.
5. Shortly before the beginning of the Second World War, the applicant moved to Canada. In 1942 he acquired Canadian citizenship. In 1954 the applicant's mother died and the applicant, together with a certain G., were granted administration of her estate. The latter died on 30 June 1999 and the applicant became the sole executor of his mother's estate.
6. On 24 October 1945 the then President of Czechoslovakia issued Decree no. 100/1945 on the Nationalisation of Mines and Some Other Industrial Enterprises (dekret prezidenta republiky o znárodnění dolů a některých průmyslových podniků) (hereinafter “the Decree”).
7. Pursuant to Article 1 § 1(6), (8a), (22) and (26) of the Decree, metalworking factories which had more than 500 employees, certain chemical factories, enterprises producing tyres and synthetic rubber, knitting industry factories which had more than 400 employees and factories producing hides which had more than 400 employees were nationalised as from that date. The Minister of Industry was authorised to declare, with reference to Article 1 § 4 of the Decree, which companies were to be nationalised.
8. By ordinances (vyhlášky) nos. 49/1946 and 919/1946 of 27 December 1945, published in the Official Gazette, the former Minister of Industry declared the company nationalised as from 24 October 1945.
9. While Article 8 of the Decree expressly provided for compensation, no such compensation was paid to the company's owners. Under section 9(2) the Government were obliged to enact detailed rules governing compensation.
10. On 2 May 1947 the applicant's step-uncle was convicted by the former National Court (národní soud) of committing offences under Act no. 50/1923 on the Security of the Republic (zákon na ochranu republiky) and under Presidential Decree no. 16/1945 on the Punishment of Nazi Criminals, Traitors and Their Collaborators and on Extraordinary People's Courts (dekret prezidenta republiky o potrestání nacistických zločinců, zrádců a jejich pomahačů a o mimořádných lidových soudech) and his property confiscated.
11. On 10 July 1949 the applicant applied under the Decree to the Ministry of Finance for compensation for the value of his shares in the company, together with other nationalised goods. No reply was given to him.
12. On 18 April 1973 Canada and Czechoslovakia concluded an agreement providing for compensation to settle claims of Canadian nationals arising from nationalisation measures in Czechoslovakia. According to letters exchanged on this occasion between the contracting Governments the agreement did not apply to the applicant's claim with regard to the company despite his Canadian citizenship.
13. In December 1989, after the collapse of the communist rule, the applicant visited former Czechoslovakia and was assured by the new Czechoslovak Government that the past injustices towards him and his family would be remedied. The then Federal Deputy Prime Minister publicly stated in this respect:
“The approach of the past regime to the Baťa family was based entirely on lies. It was based on the claim that [the applicant's step-uncle] was a collaborator and that the heirs of [the applicant's father] thus do not have any right to claim anything. We have to take a fair approach. It is necessary to apologise on behalf of the State and give the Baťa family full satisfaction and, furthermore, consider negotiations on damages.”
14. On 9 January 1991 the Ministry of Justice and the Ministry of Trade refused the applicant's claims for compensation, stating that the applicant's step-uncle had been the true owner of the company. A similar letter was sent to the applicant by the Minister of Finance on 13 February 1991.
15. The company went into liquidation on 21 August 2003.
16. On 27 May 2005 the liquidator wrote to the Ministry of Finance, seeking compensation for the company's nationalised property under the Presidential Decree. On 14 June 2005 the Minister of Finance replied, inter alia, in the following terms:
“A decision granting the required compensation for the nationalised property cannot be issued due to the lack of necessary regulations; in other words, the Government have not yet adopted the regulation as provided for in Article 9 § 2 of [the Presidential Decree]. ... Admittedly, the claim for compensation came into existence by virtue of the [Presidential Decree] which provided in its Article 8 § 1 that compensation has to be paid for nationalised property; however the right to such compensation can only be executed once the terms and conditions set forth in the decree are enacted.”
17. The Minister further stated that no compensation could be provided to the applicant under the restitution legislation.
18. On 13 September 2005, in reply to the liquidator's subsequent letter 8 August 2005, the Minister stated in particular:
“[Your objections] are not substantiated. The [previous] position adopted by the Ministry of Finance ... is in conformity with the legal opinion of the Prague Municipal Court acting as an administrative court when dismissing an administrative action seeking the payment of compensation for nationalised property under the [Presidential Decree]. The court expressed the following opinion:
'... the duty to issue a decision must be in conformity with procedural and substantive law. However, there is no substantive law on the basis of which a decision granting or rejecting a compensation claim for nationalised property could be based. From the Constitutional Court's decision (e.g. Pl. ÚS 14/94) concerning the Presidential Decrees issued in 1945 it appears that these Decrees continue to be part of the national legal system, but cannot serve as a basis for taking decisions. In those circumstances, the Ministry of Finance is not competent to deliver any decision under Decree no. 100/1945. The mere existence of the adjective law, Act no. 71/1967 [the Code of Administrative Procedure] is not sufficient to create the power of the administrative authority to decide.' ...”
19. In a letter of 20 October 2005 sent to the applicant in the matter of his request for compensation under the Decree the Minister of Finance maintained that the applicant's step-uncle had been the true owner of the company's assets at the time of its nationalisation.
20. On 25 June 2007 the Prague Municipal Court quashed the judgment of the National Court of 2 May 1947 by which the applicant's step-uncle had been convicted, and remitted the case to the prosecutor for further consideration. Subsequently, on an unspecified day, the prosecutor decided to discontinue these criminal proceedings.
21. Pursuant to section 1(1)(26) of the Decree enterprises for the production of leather, artificial leather, leather products and their substitutes with more than 400 employees according to the average number of employees as of 1 January 1939 and 1 January 1941 were nationalised as from that date. The former Ministry of Industry was authorised to declare which companies had been nationalised.
22. Section 7(1) excludes from the right to compensation various categories of people, including, for example, those who had supported the Nazi occupation. None of these exceptions is relevant to the present case. Paragraph 3 provides, inter alia, that if a legal entity is not paid compensation for its property, pro rata compensation is to be paid to the shareholders.
23. In accordance with section 8(1) compensation is to be provided for nationalised property.
24. Under section 8(2) the condition and liabilities of the nationalised property on the day of its takeover by the national enterprise is decisive for the purpose of assessing compensation. The compensation was to be equal to the general price of the property calculated in accordance with official prices on the day of nationalisation, or, should there be no such prices, prices ascertained by an official appraisal after deduction of liabilities. The Minister of Industry may, in agreement with the Minister of Finance, issue a regulation for assessment of the general price and evaluation of liabilities for the purposes of calculation of compensation in accordance with this provision.
25. Section 9(1) provides that compensation for nationalised property is provided (a) in the form of consideration similar to allowances from the national insurance system, (b) in the form of securities, (c) in cash or (d) in other assets. Under paragraph 2, the government shall adopt a regulation governing the provision of compensation pursuant to sub-paragraph (a) and shall lay down therein principles for providing compensation in cash and in other assets.
26. Section 10(1) establishes, in order to provide compensation, the National Economy Fund, an independent legal entity with its registered office in Prague. Under paragraph 2, for the purposes of provision of the compensation in accordance with section 9(1)(b), the Fund shall issue bonds guaranteed by the State. They shall bear interest and be redeemed by the Fund. They may be used for money deposits of infants and wards. The Government shall regulate the interest-rates and the redemption by secondary legislation. Paragraph 4 holds that the Government shall regulate the organisation, administration and management of the Fund by a regulation.
27. Under section 11(1) the Minister of Finance, in agreement with the empowered minister, is to decide on the compensation and the manner of its provision. Under paragraph 4, the compensation is payable within six months of the adoption of the decision. Under paragraph 5, the regulations on administrative procedure apply to compensation proceedings under section 11.
28. Under Article 1 the Provisional National Assembly approves Presidential Decrees issued on the basis of the Constitutional Decree on the Provisional Exercise of Legislative Power of 15 October 1940. All Presidential Decrees are to be regarded ab initio as laws and constitutional Presidential Decrees are to be regarded as constitutional laws.
29. The Regulation was issued under section 9(5) of the Decree and Act no. 51/1948 on Adjustment of Certain Financial Relationships of National Food and Industry Enterprises.
30. Under section 1(b) the Nationalised Property Fund exercises, inter alia, compensatory services under the Decree as amended. Under section 6(2) expenditures from the Fund include a) amounts destined to pay interest and redemption of securities which the Fund delivers by virtue of section 9(1)(a) of the Decree, to recover those securities, b) compensatory payments in cash under section 9(1)(b) of the Decree, c) charges to compensate in other assets within the meaning of section 9(1)(c) of the Decree, d) payments from the National Restoration Fund and e) administrative fees of the compensatory services in accordance with the State budget.
31. Section 14(2) provides that from 1 January 1952 the Nationalised Property Fund did not exercise the compensatory services which focused on concentration of means from enterprises and the State budget and financing of the enterprises. The Minister of Finance is charged with making adjustments to the organisation, administration and management of the Funds. Government Regulation no. 253/1948 ceased to be applicable on the day on which this new regulation entered into force.
32. In the preamble, the Federal Assembly of the Czech and Slovak Federal Republic affirmed its intention to redress the consequences of certain infringements of property and other rights which occurred between 1948 and 1989.
33. Section 1(1) of the Act provides that its aim is to redress the consequences of certain violations of property and other rights caused by acts falling within the sphere of civil or labour law or by administrative acts incompatible with the principles of a democratic society respecting the rights of citizens, as enshrined in the Charter of the United Nations and the Universal Declaration of Human Rights.
34. According to sections 2(1)(c) and 2(3), such redress consists in the surrender of property if the violation in question was caused by an act infringing generally recognised human rights and freedoms, that is, an act in contradiction with the principles referred to in section 1(1) of the Act. When an entitled person was deprived of his or her property rights under nationalisation laws adopted between 1945 and 1949 without appropriate compensation, the entitled person has a claim under this Act, which he or she can raise under the particular law (the Privatisation Act).
35. Section 3(1) provides that, in order to be entitled to restitution of his or her property, a claimant must be a natural person and a citizen of the Czech and Slovak Federal Republic whose property was ceded to the State in the circumstances listed in section 6 of the Act. According to section 3(2)(e), if the person whose property has been transferred to the State in cases specified in section 6 died before the expiry of the period specified in section 5(2), the entitled persons, provided they are citizens of the Czech and Slovak Federal Republic, are his or her spouse and children, or in the case of the latter's death, their children.
36. Under Article 79 § 1, a person who has unsuccessfully exhausted all the measures that a procedural regulation applicable to proceedings before administrative authorities sets out for his protection against the administrative authority's failure to act, may, in its action, request the court to lay an obligation upon that authority to deliver a decision on the merits, or a certificate. Second paragraph provides that subject to complying with all other statutory requirements an action may be successful if the administrative authority failed to deliver a decision although it was obligated by law to deliver one.
37. Under Article I. the Government of Czechoslovakia were to pay to the Government of Canada the sum of 3,250,000 Canadian dollars (CAD) in full and final settlement of Canadian claims arising before the date of the coming into force of that agreement against the Czechoslovak Government and Czechoslovak natural and juridical persons in respect of property, rights and interests in Czechoslovakia affected by Czechoslovak measures of nationalisation, expropriation, taking under administration or any other similar legislative or administrative measures.
38. Article II (1) specified that for the purpose of this Agreement “Canadian claims” meant claims of natural persons who were Canadian citizens on the date of the coming into force of this Agreement and who were or whose legal predecessors were Canadian citizens on the date of the coming into force of the measures referred to in Article I or on the date on which the relevant measures were first applied to their property, rights or interests.
39. The Constitutional Court dismissed a constitutional appeal by Mr R. D. who had sought to have repealed Presidential Decree No. 108/1945. The court held, inter alia:
“... since the enemy occupation of Czechoslovak territory by the armed forces of the Reich had made it impossible to assert the sovereign State power which stemmed from the Constitutional Charter of the Czechoslovak Republic, introduced by Constitutional Act no. 121/1920, as well as from the whole Czechoslovak legal order, the provisional Constitutional Order of the Czechoslovak Republic, set up in Great Britain, must be regarded as the internationally recognised legitimate constitutional authority of the Czechoslovak State. In consequence thereof and as a result of their ratification by the Provisional National Assembly by Constitutional Act no. 57/1946 of 28 March 1946, all normative acts of the Provisional Constitutional Order of the Czechoslovak Republic represents Czechoslovak (Czech) legislative power... [through which]... the constitutional and legal order of the Republic was achieved. ...
. ...
In view of the fact that [the Decree] has already accomplished its purposes and for a period of more than four decades has not created any further legal relations, so that it no longer has any constitutive character, its inconsistency with constitutional acts or international treaties ... cannot, in the given situation, be reviewed today.”
40. The Constitutional Court stated, inter alia:
“The Parliament did not adopt the opinion that all injustices would be redressed, but only some injustices, and to the extent and under the conditions stipulated by law. It was the State's sovereign decision whether at all, and to what extent, property injustices would be redressed.”
41. The Constitutional Court held, in particular:
“[T]he Act [no. 87/1991] does not intend to provide redress for the consequences of all injustices, but to mitigate the consequences of only some injustices, not all of them. From that it follows that injustices other that those included in the Act cannot be rehabilitated, nor can they be rehabilitated in any way other than specified in the Act; ... From these statutory provisions [section 6(1)(j) and section 2(3) second sentence of Act no. 87/1991] it can be deduced that if the legislator wanted to compensate also for the cases of confiscation for which compensation was to be provided, but had not been paid, it would have stipulated this explicitly in section 6(1) of the Act, or within this Act in another provision it would have extended the opportunity to mitigate the consequences of property and other injustices to include also the cases of confiscation for which compensation had not been provided, although it should have been. The legislator, however, did not do that.”
42. The Constitutional Court held, in particular:
“When formulating particular reasons for restitution, the legislator's will have to be respected. If in section 2(3) second line of the Extra-Judicial Rehabilitation Act, the restitution ground is formulated as following: 'When an entitled person was deprived of his or her property rights under nationalisation laws adopted between 1945 and 1949 without appropriate compensation, the entitled person has a claim under this Act, which he or she can raise under the particular legislation', regardless of the fact that the nationalisation took place ex lege[;] the right to compensation must be applied and not eliminated. It is clear that in case of section 2(3) second line of the Extra-Judicial Rehabilitation Act, the restitution ground is based on an act infringing generally recognised human rights [section 2(1)(c) of the Extra-Judicial Rehabilitation Act], not because of the act of nationalisation, but due to the failure to provide compensation which is the element of irregularity which constitutes an infringement of generally recognised human rights as provided for in the Extra-Judicial Rehabilitation Act.
Section 2(3) second line of the Extra-Judicial Rehabilitation Act provides for a specific restitution ground not only because it is exercisable under the particular law which is the Privatisation Act, but also because of the fact that the legislator's will to redress those injustices which occurred in consequence of the nationalisation without compensation as required by section 7 et seq. of Presidential Decree no. 100/1945 has to be respected.”
43. In this judgment the Constitutional Court expressed its opinion on the constitutionality of the specification of the decisive period in the Land Ownership Act. In its conclusions it referred to, inter alia, the opinion embodied in its judgment no. I. ÚS 59/93, where it further held:
“[I]t is the State's sovereign decision whether it allows restitution and to what extent property injustices are to be redressed. In the Constitutional Court's opinion, specifying the decisive period, and particularly its start date, as 25 February 1948, is based on rational and objective reasons, since the legislator was compelled to specify clearly a time threshold beyond which it is fundamentally impossible to go without the danger of causing compensations to build up to the time of the pre-Munich republic or even further into the past.”
44. The Constitutional Court further noted that in dealing with the issue of what method the Czechoslovak State would choose to redress property and other injustices that had occurred in the previous period in consequence of non-democratic acts of the previous regime, it chose a method based on the principle of at least a partial mitigation of injustices caused. The court held the following as regards the chosen concept:
“[F]rom many concepts the legislator has chosen, in the restitution regulations, the one that does not explicitly repeal the legal regulations on the basis of which the ownership was lost, but that [instead] presumes, to the contrary, that in separate proceedings it should be ascertained whether all requirements stipulated by the legislator in special restitution regulation for redressing property injustice are met.”
45. On 18 February 2003 the Constitutional Court dismissed a constitutional appeal against the Ministry of Finance's failure to act upon a request to proceed under the Decree. It held, inter alia:
“At present, the Ministry of Finance is not authorised to act under Decree no. 100/1945. In the Constitutional Court's view that decree has already accomplished its purpose, since today it represents a closed group of problems and issues closely related to wartime events and the country's economic recovery after the Second World War. For more than forty years it has not created any further legal relationships and it no longer has any constitutive character. Therefore, at present the respondent Ministry is evidently not authorised to act pursuant to this Decree and thus it also cannot decide on compensation for nationalised property under Sections 7 et seq., regardless of the absence of an implementing regulation within the meaning of Section 9, subsection 2 of the Decree. (...)”
46. The Constitutional Court expressed its opinion on the concept of the restitution laws and the time-limits for the restitution claims, stating in particular:
“The restitution laws enacted after 1989 enshrine the legislator's will to redress injustices that occurred between 1948 and 1989, that is. in the period defined in Act no. 480/1991 as the period of lack of freedom, in the period of a totalitarian system, and not any other injustices. The State's will is clearly defined in the restitution laws themselves and redress is permissible only in the factual and time scope defined by these laws. ...
Should the time-limits set for the restitution claims be challenged, there would be no certainty or limit, be it factual or, and above all, time-limit, that would prevent former owners of property or their descendants from claiming property they had lost at any time in the past, even a very long time ago.”
47. In its opinion of 1 November 2005 the Constitutional Court's plenary session stated, inter alia:
“(...) in its preamble the Extra-Judicial Rehabilitation Act, which is the fundamental restitution law, explicitly excluded from restitution property which had passed to the State prior to the decisive date. Therefore, it is not true that the Act does not deal with property other than property that passed to the State during the relevant period, but in fact it concerns all property that the State owned on the day of the entry into force of the Act (1 April 1991), and which it had acquired in the period prior to the end of 1989. By excluding ... any redress for property injustices 'caused in periods even deeper in the past, including the injustices caused to citizens of German and Hungarian origin, the Act provided that the State owned this property and that claims to it relying on the general laws could not be raised. ...
Although the Constitutional Court established a tendency towards redressing injustices to the widest extent possible, it was always within the regulations passed with a view to mitigating the injustices which occurred between 1948 and 1989, ... and not other injustices. The State's will is clearly defined by the restitution laws themselves and redress is permissible only to the factual and time extent defined by these laws. ...
To the question of whether it is possible to seek protection of an ownership right that ceased to exist prior to 1948 applying the general civil law rather than by using the methods stipulated by the restitution regulations ..., the Constitutional Court replies in the negative.”
48. The Supreme Court held, in particular:
“The restitution laws provided redress for nationalisation of property – in the relevant period – carried out in conformity with the then valid law but without compensation. It was section 2(3) of the Extra-Judicial Rehabilitation Act which, in regard of industrial enterprises, created a class of restitution beneficiaries whose claims were linked to privatisation settlement under section 47 of the Privatisation Act [Act no. 92/1991]. Undoubtedly, the aim of this legislation was to distinguish, from the massive group of the then owners of nationalised enterprises, natural persons who would be empowered for redress of property injustices suffered.
However, no further extension of the claims of the owners of the nationalised enterprises was planned. [T]he extensive interpretation used by the plaintiff also lacks constitutional conformity (see the finding of the Plenary of the Constitutional Court of 25 March 1998, no. Pl. ÚS 45/97). Still less could approximately assessed compensation, as calculated of course without foundation, by the plaintiff, be accepted. In other words, [granting] such a claim for compensation would in general terms lead to a blanket compensation of natural persons for property nationalised under decrees adopted in 1945, those persons being entitled to calculate arbitrary amounts to be paid. Such a procedure cannot be permitted, as it contravenes not only ordinary law but is also unconstitutional (see finding of the Constitutional Court of 6 November 1996, File no. I. ÚS 197/96).”
49. The Constitutional Court held, inter alia:
“It is necessary to proceed in compliance with the principle of a broader application of fundamental rights and freedoms and to adopt an interpretation which observes the sense and substance of fundamental rights ... Any application or interpretation to the contrary would constitute a breach of Article 4 § 4 of the Charter of Fundamental Rights and Freedoms, under which the substance and sense of fundamental rights and freedoms must be observed in the course of the application of the provision specifying the restrictions imposed on them. Such restrictions may not be misused to serve any other purpose but those for which they were specified.”
50. The Supreme Administrative Court decided in this landmark ruling in favour of an action challenging inactivity on the part of the Ministry of Finance, which had failed to pursue administrative proceedings upon the introduction of a request for compensation under the Decree. While emphasising that its present ruling did not deal with the question as to whether compensation should be granted, the court found that the request had triggered administrative proceedings and accordingly ordered the Ministry to adopt a formal decision.
It held, inter alia:
“[The court] did not accept...the obiter dictum opinion briefly articulated in the Constitutional Court's decision no. II. ÚS 14/03, in accordance with which a request for compensation pursuant to this legislation [the Decree], which no longer gives rise to rights and obligations, does not trigger administrative proceedings.”


ITEMID: 001-80255
LANGUAGEISOCODE: ENG
RESPONDENT: DEU
BRANCH: ADMISSIBILITY
DATE: 2007
DOCNAME: COLLMANN v. GERMANY
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Peer Lorenzen
TEXT: The applicant, Mr Reiner Collmann, is a German national who was born in 1941 and lives in Fortaleza (Brazil). He was represented before the Court by Mr V. Hente, a lawyer practising in Strasbourg (France). The German Government (“the Government”) were represented by their Agent, Mrs A. Wittling-Vogel, Ministerialdirigentin, of the Federal Ministry of Justice.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 15 July 1989 the motor yacht “Carat” caught fire and sank south of Cap Tossa between the Spanish coast and Ibiza. The German ship-owner and a Brazilian crew member were rescued by a Moroccan ferry passing by. Substantial damage was claimed for the loss of the vessel. The applicant submitted an expert report asserting that the market value of the ship was DEM 935,000. The insurance company and the Berlin police made an inquiry into the sinking of the vessel.
On 23 October 1992 the Berlin-Tiergarten District Court (Amtsgericht) issued an international warrant of arrest against the applicant suspecting him of having taken part as an expert in asserting a fraudulent claim in an amount of approximately one million German marks against an insurance carrier for the loss of the motor yacht. On the applicant’s appeal the Berlin Regional Court (Landgericht) confirmed the warrant of arrest.
On 30 March 1994 the applicant was arrested in Brazil and taken in detention in view of his extradition. On 13 August 1994 he was extradited to Germany and on 14 August 1994 taken in detention on remand. The indictment dated 25 November 1994 charged the applicant with insurance fraud under Article 265 of the Criminal Code (in its version in force until 31 March 1998). The applicant was accused of having been involved with others in the intentional sinking of an insured ship for the purpose of deriving an unjust economic advantage.
The applicant’s requests for release were dismissed by the Berlin Regional Court on the ground that there was a risk of collusion.
On 15 June 1995 the trial started before Berlin Regional Court (Landgericht).
On 26 April 1996 the applicant complained to the Berlin Constitutional Court (Verfassungsgerichtshof) claiming that there was no evidence to suspect him of having committed or prepared an offence, and that his preventive detention was unlawful.
On 9 May 1996 the Regional Court ordered the applicant’s release having regard inter alia to the long period spent by the applicant in detention on remand.
On 20 November 1996 the applicant withdrew his constitutional complaint to the Berlin Constitutional Court..
On 11 March 1998 the Berlin Regional Court convicted another accused involved in the loss of the ship of fraud and sentenced him to two years’ imprisonment.
On 31 October 1996, after having held 73 hearings, the Regional Court stayed the proceedings and revoked the warrant of arrest issued against the applicant on the ground that he suffered from a long-lasting illness. Having regard to his poor health, it did not fix a new hearing.
By the Sixth Criminal-Law Reform Act of 1998, Article 265 of the Criminal Code, among other provisions, has been amended reducing the limitation period from twenty to ten years. As a consequence thereof, the limitation period for the charges brought against the applicant under that provision expired on 15 July 1999.
On 15 February 2000 the Regional Court discontinued the criminal proceedings on the ground of prescription of prosecution. It ordered the costs of the proceedings and the applicant’s necessary costs and expenses to be borne by the Treasury, while it refused to grant the applicant compensation for the prosecution measures taken against him, namely for the time spent in detention in view of his extradition and the detention on remand, the search of his home, office and his prison cell and the confiscation of a life raft and various documents. The Regional Court relied on Section 5 § 2, first sentence, of the Act on Compensation for Prosecution Measures (Gesetz über die Entschädigung für Strafverfolgungsmaßnahmen). In accordance with this provision compensation shall be denied if the accused had deliberately or grossly negligently caused the prosecution measures taken against him. According to the Regional Court, gross negligence was the failure to use such care as a reasonably prudent and careful person would use under similar circumstances in order to be protected against harm by prosecution measures, or the failure to do what a reasonable person would have done under the circumstances. The existence of gross negligence must be assessed with reference to those facts which were known at the time of issuing or maintaining the respective measure.
The Regional Court considered that the prosecution measures were occasioned by the applicant’s gross negligence. It mentioned in particular that the ship for which an insurance claim was made, had turned out to be a ship that the applicant had bought under a pseudonym and had modified in order to make it look as a ship of a higher value corresponding to that described in his expert report. These facts were proven beyond a reasonable doubt at the time of issuing the warrant of arrest and had been confirmed by further investigations and the evidence obtained at the oral hearings.
The applicant appealed against that decision arguing that the Regional Court had committed errors of fact and law and arbitrarily assessed the evidence.
On 22 March 2000 the Berlin Court of Appeal (Kammergericht) dismissed the applicant’s appeal lodged against the above decision.
On 15 January 2001 the Berlin Regional Court fixed the amount of the costs to be reimbursed to the applicant at DEM 812.80. The applicant’s appeal against this decision was dismissed by the Berlin Court of Appeal on 21 May 2001.
On 18 May 2001 the Federal Constitutional Court (Bundesverfassungsgericht), sitting as a bench of three judges, refused to admit the applicant’s constitutional complaint for adjudication without giving further reasons for its decision.
Compensation for prosecution measures is covered by the Act on Compensation for Prosecution Measures (Gesetz über die Entschädigung für Strafverfolgungsmaßnahmen).
In cases where an accused is acquitted or where the proceedings against him are discontinued or where a court refuses to open the proceedings against him, he is entitled to compensation for damages suffered due to time spent in detention on remand or due to other prosecution measures (Section 2).
Pursuant to Section 5 § 2 of that law, compensation for prosecution measures shall be denied in cases where the accused has deliberately or in a grossly negligent manner caused the prosecution measure.


ITEMID: 001-94646
LANGUAGEISOCODE: ENG
RESPONDENT: ROU
BRANCH: CHAMBER
DATE: 2009
DOCNAME: CASE OF STOICAN v. ROMANIA
IMPORTANCE: 4
CONCLUSION: Violation of Article 5 - Right to liberty and security
JUDGES: Alvina Gyulumyan;Corneliu Bîrsan;Elisabet Fura;Josep Casadevall;Luis López Guerra
TEXT: 5. The applicant was born in 1963 and lives in Bucharest.
6. At the material time she was a judge in a first-instance court in Bucharest. Two sets of criminal investigations were started against her, on suspicion of having repeatedly falsified official documents in the exercise of her duties, as part of an organised group, with the aim of illegally obtaining title to various properties in the centre of Bucharest.
7. Under the provisions of Law no. 92/1992 on the Organisation of Justice, the applicant was automatically suspended from her post during the criminal trial.
8. On 18 September 2001 she was dismissed from her post by an order of the Supreme Council of the Judiciary (Consiliul Superior al Magistraturii) for manifest professional unfitness. On 15 July 2003 the decision was endorsed by the President of the Republic and on 3 November 2003 it was upheld by the High Court of Cassation and Justice (former Supreme Court of Justice), upon an appeal by the applicant.
9. On 9 October 2001 the prosecutor at the Supreme Court of Justice started the criminal investigations against the applicant.
10. On 27 November 2001 the applicant was arrested for thirty days, on the orders of the prosecutor, in connection with the criminal investigations against her.
The applicant appealed against the arrest order on the grounds that it did not satisfy the domestic-law requirements or those set forth in Article 5 § 3 of the Convention.
11. On 5 December 2001 the Bucharest Court of Appeal upheld the arrest order. It found that the evidence in the file disclosed a reasonable suspicion that she had committed the offences she was accused of. It considered that her actions, which were contrary to public policy, had been aggravated by the fact that the applicant had been a judge at the time.
On 14 December 2001 the Supreme Court of Justice upheld the order by two votes to one. The third judge expressed his separate opinion that there were no grounds for arresting the applicant.
12. On 19 December 2001 the Court of Appeal extended the applicant's pre-trial detention by thirty days, upon a request by the prosecutor. It found that:
“the reasons invoked – in the light of the complexity of the case which requires that the prosecutor take the investigative measures indicated in his request – constitute sufficient justification under Articles 155 et seq. of the Code of Criminal Procedure.”
On 28 December 2001 the Supreme Court of Justice upheld the abovementioned interlocutory judgment.
13. On 24 January 2002 the Court of Appeal extended the applicant's detention on the ground that the applicant's release would be contrary to public policy, given the seriousness of the offences she was accused of and the risk of generating society's mistrust in the judicial system.
On 6 February 2002 the Supreme Court reduced the new term of detention to fifteen days.
14. On 7 February 2002 the Court of Appeal extended the detention for a further thirty days on the ground that the reasons invoked for the arrest still existed.
On 15 February 2002 the Supreme Court reduced the duration of detention to fifteen days again.
15. On 21 February 2002 the Court of Appeal extended the detention by nineteen days on the same grounds, in order to allow the prosecutor to finalise the investigations. On 5 March 2002 the Supreme Court upheld the interlocutory judgment.
16. On 14 March 2002 the Court of Appeal dismissed a new request by the prosecutor for another extension of the applicant's pre-trial detention, from 15 April to 14 May 2002. It found that the reasons that had justified the taking of the measure did no longer exist. It noted that the applicant had been suspended from her position and pointed out that the alleged danger in terms of public policy should not be assessed in abstract terms. It also noted that the prosecutor had not made progress with the investigations after the applicant's arrest and had not carried out the procedural measures for which he had repeatedly sought an extension of the detention.
On 15 March 2002 the Supreme Court of Justice reversed the decision on the ground that the documents in the file justified the extension.
17. On 10 April 2002 the Court of Appeal rejected, on the same grounds as before, another extension request.
On 12 April 2002 the Supreme Court reversed the interlocutory judgment again.
18. In the following interlocutory judgments in the case the Court of Appeal did not examine the applicant's detention, as she had been “arrested in connection to other criminal proceedings” (point B below).
19. On 13 June 2002 the applicant was committed to stand trial along with several other persons. The prosecution examined some forty witnesses, documents were transferred from various authorities and several expert reports submitted.
20. The Court of Appeal gave judgment on 31 October 2003, convicting the applicant of abuse of power and forgery and sentencing her to five years' imprisonment. The applicant's sentence was increased to seven years' imprisonment on appeal (decision of 28 February 2005 of the Supreme Court of Justice) and became final on 24 March 2006.
21. The applicant was released from prison on 13 November 2007.
22. On 11 April 2002 the applicant was arrested by the prosecutor at the Bucharest Court of Appeal in connection with criminal investigations against her. The prosecutor justified his order on the grounds that the criminal offence that she had been accused of was punishable by a term of imprisonment of more than two years and that her continued freedom would run counter to public policy.
23. On 23 April 2002 the applicant was brought before the Court of Appeal for examination of her appeal against the arrest order.
On 24 April the Court of Appeal delivered its interlocutory judgment; it upheld the arrest order in the following terms:
“Under the terms of the last paragraph of Article 140 of the Code of Criminal Procedure, the court may quash the arrest order ... only if it finds that the measure was illegal.
However, in the case at hand, the [applicant's] arrest meets the conditions set forth in Article 148 of the Code of Criminal Procedure and the criteria in Article 136 § 3 of the Code of Criminal Procedure, to ensure the proper administration of criminal proceedings; therefore the [applicant's] complaint against the arrest order seems illfounded and shall be dismissed.
...
Concerning the request for conditional release from arrest, in accordance with Articles 1604 and 1606 § 5 of the Code of Criminal Procedure, the prosecutor decides on such a request during the prosecution phase and the court that examines the merits of the case deals with the request made during the criminal trial.
Therefore, the court does not have the power to examine the request, in so far as the case is currently in the prosecution phase, under the prosecutor's exclusive supervision.”
The court also found that the prosecutor had the power to issue the arrest order, and dismissed the applicant's complaint to the contrary.
On 7 May 2002 the Supreme Court of Justice upheld the interlocutory judgment, in particular on the ground that the reasons that had justified the imposition of the preventive measure still existed and thus the applicant's continued detention was legal.
24. On 29 April 2002 the Court of Appeal extended the detention for another thirty days, at the prosecutor's request. It found that:
“the reasons invoked for taking the measure still exist, with regard to the nature of the offence, the circumstances of the facts and the consequences produced.
Moreover, the extension of the pre-trial detention is necessary, given the complexity of the case, which requires an examination of several witnesses, various expert investigations, gathering of documents from the authorities and confrontations.”
On 15 May 2002 the Supreme Court of Justice dismissed the applicant's appeal and upheld the above interlocutory judgment.
25. On 29 May 2002 the Court of Appeal dismissed another request by the prosecutor and refused to extend the applicant's detention for a month. It noted that the prosecutor had already gathered the evidence and could not justify the need for continuing the applicant's detention; it also found that as the applicant had been dismissed from her post, there was no longer a public-policy issue.
On 30 May 2002 the Supreme Court reversed the above decision and extended the detention by seven days to allow the prosecutor to gather more evidence, as he had requested.
26. On 5 June 2002 the applicant was committed for trial by the prosecutor, on charges of abuse of power and forgery, in respect of facts similar to those under investigation in the above-mentioned criminal file (described at A above).
27. On 6 June 2002 the Court of Appeal dismissed a further extension request by the prosecutor and ordered the applicant's release as it considered that the reasons for her detention did no longer exist.
The same day the Supreme Court reversed the decision; it held that the Court of Appeal had not given reasons for its decision and that the applicant's release would still be contrary to public policy in that she had apparently committed several similar offences. It therefore extended the detention pending trial by thirty days.
28. On 24 June 2002 the Court of Appeal extended the applicant's detention by thirty days on the ground that:
“as the reasons that justified the taking of this measure still exist, releasing her would be highly contrary to public policy and would harm the investigations.”
On 5 July 2002 the Supreme Court declared inadmissible an appeal lodged by the applicant, on the ground that a decision extending detention was subject to appeal at the same time as the judgment on the merits of the case.
29. On 1 August, 2 and 27 September and 1 and 22 November 2002 the Court of Appeal extended the detention for further terms of thirty days, with the same justification. On 15 August, 9 October and 27 November 2002 the Supreme Court declared the applicant's respective appeals inadmissible. On two occasions – 13 September and 10 December 2002 – the Supreme Court upheld on the merits the interlocutory judgments delivered by the Court of Appeal.
A request by the applicant for conditional release was also dismissed by the Court of Appeal, on 22 November 2000.
30. On 20 December 2002 the Court of Appeal gave judgment in the case. It convicted the applicant of abuse of power and forgery and sentenced her to one year and six months' imprisonment. In a final decision of 4 June 2003 the Supreme Court of Justice upheld the conviction but reduced the sentence to one year and four months' imprisonment.
31. The relevant provisions of the Code of Criminal Procedure concerning pre-trial detention and its extension are set forth in Pantea v. Romania, no. 33343/96, § 150, ECHR 2003VI (extracts). The procedure for lodging complaints against preventive measures, including pre-trial detention, is described in Tase v. Romania, no. 29761/02, §§ 14-15, 10 June 2008.
VIOLATED_ARTICLES: 5