CASE OF GILLBERG v. SWEDEN
Remainder inadmissible;No violation of Art. 8;No violation of Art. 10
Alvina Gyulumyan;Elisabet Fura;Ineta Ziemele;Josep Casadevall;Luis López Guerra
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: