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LEANDER v. SWEDEN JUGDMENT
PARTLY DISSENTING OPINION OF JUDGE RYSSDAL
PARTLY DISSENTING OPINION OF JUDGE RYSSDAL
1. I subscribe to the finding that no breach of Article 8 or Article 10
(art. 8, art. 10) has been established.
2.
As the Court has held that Article 8 (art. 8) did not in the
circumstances require the communication to the applicant of the relevant
information on him released to the military authorities, I also concur that the
lack of communication of this information cannot entail a breach of Article
13 (art. 13). In that respect, Article 13 (art. 13) must be interpreted and
applied so as not to nullify the conclusion already reached under Article 8
(art. 8).
3. However, by virtue of Article 13 (art. 13), the applicant should have
had available to him "an effective remedy before a national authority"; and I
do not agree with the majority of the Court "that the aggregate of the
remedies" set out in paragraphs 81 to 83 of the judgment "satisfies the
conditions of Article 13 (art. 13) in the particular circumstances of the
instant case".
4. It is convenient first to identify the alleged breach of the Convention
in respect of which Mr. Leander was entitled to an effective domestic
remedy by virtue of Article 13 (art. 13). His basic grievance under Article 8
(art. 8) is described in the judgment (at paragraph 47) as being "that nothing
in his personal or political background ... could be regarded as of such a
nature as to make it necessary in a democratic society to register him in the
Security Department’s register, to classify him as a ‘security risk’ and
accordingly to exclude him from the employment in question".
5.
I concur with the Court that "for the purposes of the present
proceedings, an effective remedy under Article 13 (art. 13) must mean a
remedy that is as effective as can be, having regard to the restricted scope
for recourse inherent in any system of secret surveillance for the protection
of national security" (see paragraph 84 of the judgment).
On the other hand, precisely because the inherent secrecy of the control
system renders the citizens’ right to respect for private life especially
vulnerable, it is essential that any complaint alleging violation of that right
should be examined by a "national authority" which is completely
independent of the executive and invested with effective powers of
investigation. The "national authority" should thus have both the
competence in law and the capability in practice to inquire closely into the
operation of the personnel control system, and in particular to verify that no
mistake has been made as to the scope and manner of exercise of the
discretionary power conferred on the police and the National Police Board
to collect, store and release information. Such an independent power of
inquiry is all the more necessary as some of the Government’s instructions
regarding the storing of information in the police register are themselves