LEANDER v. SWEDEN JUGDMENT
PARTLY DISSENTING OPINION OF JUDGE RYSSDAL
31
secret, a fact which, to my mind, of itself constitutes a considerable source
of concern.
In so far as the "national authority" ascertains that a mistake has been
made, the citizen affected should also, by virtue of Article 13, (art. 13) have
the possibility - if need be by bringing separate proceedings before the
courts - either of contesting the validity of the outcome of the secret
personnel control, that is the decision not to employ him (or her), or of
obtaining compensation or some other form of relief.
6. The majority of the Court (at paragraph 83 of the judgment) include
in the aggregate of relevant remedies Mr. Leander’s complaint to the
Government that the National Police Board had, contrary to the provisions
of the Personnel Control Ordinance, omitted to invite him to comment on
the information contained in the register, which complaint was rejected by
the Government in their decision of 14 May 1980. In my opinion, this
avenue of recourse is not capable of being decisive for the purposes of
Article 13 (art. 13), whether taken on its own or in conjunction with the
other remedies relied on by the majority of the Court, namely complaint to
the Parliamentary Ombudsman and the Chancellor of Justice. This is
because, leaving aside the question of independence, it did not address Mr.
Leander’s basic grievance under the Convention. Even if the requirement of
secrecy did not permit Mr. Leander himself to be given the opportunity of
commenting on the adverse material kept on him in the register, Article 13
(art. 13) guaranteed him a right of access to a "national authority" having
competence to examine whether his Convention grievance was justified or
not.
Consequently, of the aggregate of relevant remedies, there remains for
consideration the possibility of applying either to the Parliamentary
Ombudsman or to the Chancellor of Justice.
7.
The Parliamentary Ombudsman and the Chancellor of Justice
exercise a general supervision over the activities of the executive branch of
government; they do not have specific responsibility for inquiry into the
operation of the personnel control system. I recognise that, by tradition in
Sweden, the opinions of the Parliamentary Ombudsman and the Chancellor
of Justice command great respect. However, the Parliamentary Ombudsman
and the Chancellor of Justice have no power to render legally binding
decisions; and it is not clearly established that, if in the opinion of the
Ombudsman or the Chancellor a mistake has been made, the individual
affected would have available to him an effective means to contest the
validity of the employment decision or to obtain some other form of relief.
8. I consequently conclude that there has been a breach of Article 13
(art. 13).