24
LEANDER v. SWEDEN JUGDMENT
therefore be said to have been disproportionate to the legitimate aim
pursued.
4. Conclusion
68. Accordingly, there has been no breach of Article 8 (art. 8).
II. ALLEGED VIOLATION OF ARTICLE 10 (art. 10)
69. The applicant further maintained that the same facts as constituted
the alleged violation of Article 8 (art. 8) also gave rise to a breach of Article
10 (art. 10), which reads:
"1. Everyone has the right to freedom of expression. This right shall include
freedom to hold opinions and to receive and impart information and ideas without
interference by public authority and regardless of frontiers. This Article shall not
prevent States from requiring the licensing of broadcasting, television or cinema
enterprises.
2. The exercise of these freedoms, since it carries with it duties and responsibilities,
may be subject to such formalities, conditions, restrictions or penalties as are
prescribed by law and are necessary in a democratic society, in the interests of
national security, territorial integrity or public safety, for the prevention of disorder or
crime, for the protection of health or morals, for the protection of the reputation or
rights of others, for preventing the disclosure of information received in confidence, or
for maintaining the authority and impartiality of the judiciary."
70. The Commission found that the applicant’s claims did not raise any
separate issues under Article 10 (art. 10) in so far as either freedom to
express opinions or freedom to receive information was concerned. The
Government agreed with this conclusion.
A. Freedom to express opinions
71.
The right of recruitment to the public service is not in itself
recognised by the Convention, but it does not follow that in other respects
civil servants, including probationary civil servants, fall outside the scope of
the Convention and notably of the protection afforded by Article 10 (art. 10)
(see the Glasenapp and the Kosiek judgments of 28 August 1986, Series A
no. 104, p. 26, §§ 49-50, and Series A no. 105, p. 20, §§ 35-36).
72. It has first to be determined whether or not the personnel control
procedure to which the applicant was subjected amounted to an interference
with the exercise of freedom of expression - in the form, for example, of a
"formality, condition, restriction or penalty" - or whether the disputed
measures lay within the sphere of the right of access to the public service. In
order to answer this question, the scope of the measures must be determined
by putting them in the context of the facts of the case and the relevant
legislation (ibid.).