32
LEANDER v. SWEDEN JUGDMENT
PARTIALLY DISSENTING OPINION OF JUDGES PETTITI AND RUSSO
PARTIALLY DISSENTING OPINION OF JUDGES PETTITI
AND RUSSO
(Translation)
We voted with the majority in finding that there has been no breach of
Articles 8 and 10 (art. 8, art. 10) but we hold that there has been a breach of
Article 13 (art. 13).
We consider that a complaint to the Chancellor of Justice would have
resulted only in an opinion being given and was not an effective remedy; the
same is true of the Ombudsman. These two remedies taken together, then,
do not satisfy the requirements of Article 13 (art. 13).
Individuals are not regarded as being parties to the release procedure
before the Board (see the Supreme Administrative Court’s decision of 20
June 1984). No appeal lies to the Government or to the administrative courts
against the Board’s decision as such to supply information to the requesting
authority, nor was Mr. Leander involved in criminal proceedings such as
would have entitled him to require the document to be released.
In the case specifically of registers which, being secret, make it
impossible for a citizen to avail himself of the laws and regulations entitling
him to have access to administrative documents, it is all the more necessary
that there should be an effective remedy before an independent authority,
even if that authority is not a judicial body.
The doctrine of act of State may be invoked by the Government
improperly. The police authorities may even have committed a flagrantly
unlawful act (voie de fait).
It should also be noted that the Swedish Ombudsman’s decisions are
effective only in relation to civil servants and not as regards the applicant
concerned.
Furthermore, even when combined, ineffective remedies cannot amount
to an effective remedy where, as in the instant case, their respective
shortcomings do not cancel each other out but are cumulative.
The six members of the Commission who held in their dissenting opinion
that there had been a breach of Article 13 (art. 13), rightly commented on
the lack of any effective remedy. In our view, it is not essential to make it a
mandatory requirement that the authority responsible for hearing appeals
should be able to award damages, but it is absolutely essential that an
independent authority should be able to determine the merits of an entry in
the register and even whether there has been a straightforward clerical error
or mistake of identity - in which case the national-security argument would
fall to the ground.
Consideration also needs to be given to the dangers of electronic links
between the police registers and other States’ registers or Interpol’s register.
The individual must have a right of appeal against an entry resulting from a