GRAFSTRÖM v. SWEDEN
Doc ref: 16792/90 • ECHR ID: 001-1328
Document date: June 29, 1992
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AS TO THE ADMISSIBILITY OF
Application No. 16792/90
by Jack GRAFSTRÖM
against Sweden
The European Commission of Human Rights sitting in private on
29 June 1992, the following members being present:
MM. C.A. NØRGAARD, President
S. TRECHSEL
G. JÖRUNDSSON
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.-C. SOYER
H.G. SCHERMERS
H. DANELIUS
Sir Basil HALL
Mr. F. MARTINEZ
Mrs. J. LIDDY
MM. L. LOUCAIDES
J.-C. GEUS
M.P. PELLONPÄÄ
B. MARXER
Mr. H.C. KRÜGER, Secretary to the Commission.
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 4 August 1989 by
Jack GRAFSTRÖM against Sweden and registered on 28 June 1990 under file
No. 16792/90;
Having regard to
- the report provided for in Rule 47 of the Rules of Procedure of
the Commission;
- the observations submitted by the respondent Government on
12 June 1991 and the observations in reply submitted by the
applicant on 1 and 20 August, 5 and 25 September, 3 October 1991
and 24 January and 17 March 1992;
Having deliberated;
Decides as follows:
THE FACTS
The applicant is a Swedish citizen born in 1931. He is a
marketing and advertising consultant resident at Lidingö.
The facts of the case, as submitted by the parties and apparent
from the documents, may be summarised as follows.
Particular circumstances of the case
a. The 1985 census
In 1985 a compulsory population and habitation census was carried
out in Sweden, pursuant to the Act on the 1985 Population and Housing
Census (lag 1984:531 om 1985 års folk- och bostadsräkning; hereinafter
"the 1984 Census Act").
The population census concerned every person born in 1969 or
earlier and resident in Sweden or otherwise obliged to be registered
in Sweden at the time to which the requested particulars referred. The
following information was requested:
- the name and the personal identity number of the participant
- whether he had had a gainful employment for at least one hour
during 4-10 November 1985 and, in the affirmative, what kind of
employment
- the designation of his real property
- the parish in which the real property was situated
- his address
- the name of the occupier of the dwelling.
The housing census concerned every permanent occupier of a
dwelling in Sweden at the time to which the requested particulars
referred. The following information was requested of persons born in
1969 or earlier and permanently resident in a dwelling:
- his name
- his personal identity number
- his position in the household.
As regards the position in the household the following options
were available:
- "married or living together with somebody"
- "single or other inhabitant"
- "the child of somebody in the household".
Moreover, the participant was to state:
- the number of rooms in the habitation
- the form of tenure (upplåtelseform)
- whether the dwelling had a kitchen or a kitchenette
- whether it had a bathroom or a shower-room
- whether it had a toilet and whether there were one or more
dwellings in the building.
Property particulars were to be submitted by those who owned, at
the time to which the particulars referred, one or more dwelling-houses
in Sweden. The following particulars were requested in respect of the
real property:
- the county, municipality and parish where the property was
situated
- the property designation
- the type of property (agricultural or other kind of property)
- the name and address of the owner
- the category of the owner (the State, municipality, municipal
housing company, housing co-operative, private individual or
other kind of owner).
The following particulars were requested in respect of the
dwelling-house:
- the number of the building (byggnadsnummer)
- the housing type (dwelling-house for one household, dwelling-
house for two households, multi-dwelling house, some other kind
of dwelling-house)
- the number of housing units in the house
- the year of construction and the year of conversion
- the main source of heating and the type of fuel used
- the existence of a lift in multi-dwelling houses and dwelling
houses other than those for one or two families.
The following particulars were requested in respect of a housing
unit:
- the number of rooms
- the existence of a kitchen or kitchenette
- the name of the owner of the housing unit
- the number of the housing unit (lägenhetsnummer)
- if the housing unit was not let, the reason why.
The applicant's, his wife's and their children's names, personal
identity numbers and address were already printed on the census form
distributed to them.
The applicant, who was obliged to participate in the whole of the
census, returned the form without completing it, stating that the
questions were of a strictly personal character.
Subsequently, the Central Office of Statistics (Statistiska
Centralbyrån; hereinafter "the COS") unsuccessfully requested the
applicant to complete the form.
At the request of the COS, the County Administrative Board
(länsstyrelsen) of the County of Stockholm on 7 August 1986 ordered the
applicant, under penalty of a fine (vite) of 600 SEK, to submit the
information requested. The applicant refused to submit the information.
In the subsequent proceedings before the County Administrative
Court (länsrätten) of the County of Stockholm instituted by the COS,
the applicant objected to the imposition of the fine and requested a
hearing. He argued that he had refused to complete the census form only
insofar as the requested particulars went beyond what was required by
the civic registration (folkbokföringen).
On 19 November 1986 the Parliamentary Census Commission (folk-
och bostadsräkningskommissionen; hereinafter "the Census Commission")
remarked on the COS's handling of the information obtained in the 1985
census, having regard to the fact that it had commissioned private
companies to process particulars regarding the professions of the
participants without notifying the Census Commission in advance.
On 27 November 1986 the County Administrative Court informed the
applicant that it considered a hearing unnecessary in the case, having
regard to the parties' written submissions. If he were to pursue his
request for a hearing the applicant was to inform the Court of the
evidence he wanted to invoke at the hearing and what he wanted to show.
In a subsequent letter to the County Administrative Court the
applicant accepted that the case could be examined without a hearing
provided the Court found a hearing unnecessary.
By a decision of 20 February 1987 the County Administrative Court
(länsrätten) rejected the applicant's request for a hearing and ordered
the fine to be paid.
The applicant appealed to the Administrative Court of Appeal
(kammarrätten) of Stockholm which on 21 April 1987 upheld the fine.
The applicant subsequently appealed to the Supreme Administrative
Court (regeringsrätten) and requested a hearing.
In an opinion of 24 September 1986 to the Chancellor of Justice
(justitiekanslern) the COS argued that according to the 1984 Act and
the 1984 Ordinance on the 1985 Housing and Population Census
(förordning 1984:532 om 1985 års folk- och bostadsräkning; hereinafter
"the 1984 Ordinance") a discretion was conferred on the chief census
scrutinising officers (granskningsledarna) when deciding on which
census objectors to impose a fine. In any case, the fine was not a
criminal sanction, as it would have been relinquished provided the
objector had fulfilled his obligations.
The COS continued:
"Under Section 24 of the 1984 Act the COS and the chief
census scrutinising officers were to see to it that the
application of the Act did not lay an unnecessary burden on
the respondents. The imposition of fines was to be a
extreme measure ... and, thus, in the COS's view, to be
applied in a restrictive manner and following an
consideration in casu.
...
The municipal census officers contacted 80.000 persons out
of which 25.000 subsequently completed the census form.
About 750 persons stated, either orally or in writing,
without referring to any acceptable obstacle ..., that they
refused to participate in the census. They were then
ordered to complete the census form under penalty of a
fine. ..."
The COS further stated that it had been its practice to refrain
from further efforts to obtain lacking census information provided the
processing of the statistical material had reached a stage where
subsequently obtained information could no longer be processed in
accordance with its plans.
The COS finally stated:
"It should, however, be pointed out that even information
which has arrived at a late stage and which therefore
cannot be used for the planned production of statistics is
nevertheless of interest. The personal files created on the
basis of the census information form part of the
information which, having regard to its great value, is
being stored and used for research purposes and for
production of statistics carried out on special orders over
a large number of years subsequent to the completion of the
material."
In a further opinion of 16 February 1987 following press
allegations of breach of the confidentiality rules governing the
handling of the census information the COS referred to its reply to the
Census Commission in respect of the commissioning of private
enterprises to process professional particulars: no release of
information to those companies had taken place in breach of Chapter 1,
Sections 5 and 6 of the Secrecy Act. Thus, the companies had not been
granted any right to dispose of the released material. However,
following the remarks by the Census Commission certain more extensive
controls of the handling of the information by the companies
commissioned by the COS had been carried out. These had resulted in
"only minor remarks" subsequently followed up by the COS.
As regards press allegations that cross-processing of certain
information in EDP-files pertaining to census objectors had taken place
the COS stated:
"On 29 October 1986 the COS requested that the Data
Inspection Board grant it a permission to create an
"Unidentifiable Register of the Falling-Off in the 1985
census" (avidentifierat register över bortfallet i FOB 85).
The intention was to produce statistics of the
approximately 55.000 persons who had not completed their
census forms. The aim of these statistics was twofold.
Firstly, it is important to find out whether and, if so,
how the falling-off affects the statistics produced on the
basis of the census information. This is important from a
methodological point of view, even if the falling-off is,
seen at large, minor. Statistics of the above kind would
make it possible to assess whether the falling-off as
regards particulars pertaining to sex, age etc. is
different from the particulars of those who did submit the
information.
Secondly, the COS intended to study statistically the
composition of the falling-off, having regard to the
guidelines provided by the COS, i.e. in order to find out
whether fines had been imposed according to the intentions
in the law and these guidelines. ...
The COS intended to obtain information from the Register of
the Total Population (registret över totalbefolkningen)
regarding the 55.000 persons. The information was to be
immediately made unidentifiable... No investigation of
individual particulars was to take place. ...
On 19 November 1986 the Census Commission recommended the
COS not to carry out the processing. On 8 December 1986 the
COS withdrew its request to the Data Inspection Board..."
The COS added that, initially, 187.000 persons had been requested
to complete their census forms. Following initial reminders about
80.000 objectors remained. Out of those, about 25.000 returned their
forms. The remaining non-participants were those who, either on the
basis of or without a contact with a scrutinising body, were considered
to have acceptable reasons for not participating, those who could not
be reached, and those who had expressly declared their objection to the
census. The last-mentioned group of non-participants was the only one
against whom proceedings were instituted with a view to having a fine
imposed.
In the COS's view the aim of the imposition of a fine on only a
small group of non-participants - that group consisting of persons
explicitly refusing to participate - was to exclude risks of laying an
unnecessary burden on other non-participants, that is, those who were
presumed to have an acceptable reason for not completing the census
form, regardless of whether they had been contacted or not, as well as
those who could not be reached.
The COS concluded, however, that having regard to the large
number of cases under consideration by both municipal organs and the
COS it could not be excluded that the distinction between the groups
of non-participants had been made wrongly and that the imposition of
fines was not in line with the COS's guidelines. Such mistakes,
however, were exceptional.
On 15 October 1987 the Chancellor of Justice rendered a decision
in which he examined whether the guidelines issued by the COS to the
chief census scrutinising officers and the application of those
guidelines violated the principle of equality before the law as
enunciated in Chapter 1, Section 9 of the 1974 Instrument of Government
(regeringsformen). One petitioner, an author, had argued inter alia
that, as he was "a celebrity who had protested loudly against the
census, he had been sentenced to pay a fine, this constituting
'détournement de pouvoir'".
The Chancellor found that the application of the provisions
regarding fines in the 1984 Act had not violated the Constitution or
the 1984 Act itself. In reaching this conclusion he considered that the
fine at issue was not a criminal sanction, which according to
established Swedish legal doctrine shall be applied in a general way
and be directed against everyone having committed a particular offence.
Instead, the fine was to be regarded as a means to induce somebody to
fulfil an individual obligation. However, from this distinction did not
follow that fines such as the present could be imposed in an arbitrary
manner. The principle of equality before the law also applied to this
kind of sanctions. The Chancellor concluded that he could not
the COS had not treated similar cases on an equal basis or that
irrelevant considerations had been taken into account when applying the
1984 Act to certain individuals.
As regards the release of information to private data processing
companies the Chancellor noted that these had been inspected beforehand
so as to ensure "sufficient security as regards inter alia the
sensitivity of the integrity and secrecy of the material"; that the
Census Commission had not critisised the commissioning as such of
private companies; but that security inspections had led to remarks
that security measures be taken within the companies.
On 8 March 1989 the Supreme Administrative Court refused the
applicant leave to appeal.
The census form stated inter alia the following:
" ... The information given on this form will be protected
for 70 years according to the Secrecy Act (sekretesslag
1980:100). Furthermore, the information is protected under
the Data Act (datalag 1973:289). The persons handling the
forms at the municipal authorities and at the COS are
obliged to observe secrecy. No unauthorised persons will
have access to the information. The contents of the form
have been decided after consultation with the Data
Inspection Board (datainspektionen).
...
The statistics collected in the 1985 census will primarily
be used by municipal planning officers. The census is their
only means to find out how many households there are in the
different parts of the municipality, how many members of a
household are working or how many children there are in the
household. The information is necessary for the assessment
of the extent of child care and the building of dwellings.
Through the census statistics it can also be determined
where those, who reside in a certain part of the
municipality, are working. This improves the planning of
public transport and travel facilities. The information on
how our dwellings are being used will be used inter alia in
order to improve the planning of our future energy supply.
The statistics on professions are of great importance for
studies of inter alia the causality between diseases and
work environment.
The 1985 census [information] will also be used in order to
check the civic registration [information]. ..."
b. The 1990 census
A subsequent census was carried out at the end of 1990. In the
population census the following information was requested: the name and
address (already printed on the form); information as to how many hours
per week the person concerned, during October 1990, had been gainfully
employed; what his daily means of transportation to his work place had
been; and his professional and educational background.
In the housing census the following information was requested:
the names; the personal identity number; the position in the household
with respect to persons born in 1974 or earlier and permanently
resident in the house or the flat; the number of rooms with a window
in the habitation; in which form the housing was enjoyed; the number
of flats in the building; whether the habitation had a kitchen or a
kitchenette; and whether there was an elevator on the same floor as the
apartment. Owners permanently resident in a one-family house were
further requested to state the period of five or ten years during which
the house had become ready for occupation; what kind of heating system
was used; whether the house, according to the latest taxation, belonged
to a farming-property; whether more than half of the surface of the
house was used for other purposes than housing; and whether the house
was a row house, a pair house or a link house.
By letter of 6 November 1990 the applicant informed the COS that
he would not complete the census form, with the exception of the
questions as to his name, address, birth date and the name of his wife.
The 1990 census form stated inter alia the following:
"The information given will be protected under the Act on
the 1990 Population and Housing (lagen om 1990 års folk-
och bostadsräkning), the Secrecy Act and the Data Act".
Relevant domestic law
a. The 1984 Act
According to Section 1 of the 1984 Act the purpose of the census
was, on the one hand, to produce statistics for national planning,
research and general information and, on the other hand, to update the
civic registration data. According to the preparatory works (Bill no.
1983/84:85, p. 23) the enumeration was intended to be exhaustive.
Under Section 4 personal particulars were to be returned by those
born in 1969 or earlier and resident in Sweden, or who otherwise were
to be registered in a parochial register in Sweden at the time to which
the requested particulars related.
Sections 5, 7 and 9 prescribed what particulars were to be
requested in the census form. The reasons for requesting those
particulars were stated in the travaux préparatoires (Bill pp. 24-27).
Under Section 8 property particulars were to be returned by those
who, at the time to which the requested particulars related, owned one
or more dwelling-houses in Sweden.
Under Section 14 the municipalities were to be responsible inter
alia for the scrutinising of the collected information and for passing
it on to the COS when complete. With this and for other purposes the
municipality was to entrust a special census scrutinising body
(granskningsorgan).
Section 16 authorised the chief census scrutinising officer or
his deputy to request a census participant to submit census particulars
within a certain period of time.
A person refusing to fill out and return the census form was to
be formally reminded of this obligation (Section 17). A person
persisting in his refusal could be ordered to submit the information
under penalty of a fine of between 100 and 1.000 SEK. Such an order was
to be issued by the County Administrative Board at the request of the
COS or the chief census scrutinising officer (Section 18). No appeal
lay against the order (Section 19).
Questions regarding the liability to pay a fine were to be
considered by the County Administrative Court at the request of the
chief census scrutinising officer or the COS (Section 20).
Section 21 authorised the COS to obtain, for the purpose of
carrying out the census, the following information from the below
mentioned registers:
1. from the Register of the Total Population kept by the COS:
- the personal identity number
- the place of residence according to the parochial register
(kyrkobokföringsort)
- the real property on which a person resides according to the
parochial register (kyrkobokföringsfastighet)
- the address
- the relationship in the household (samhörighetsbeteckning)
- the marital status
- the nationality
- the country of birth and the most recent immigration year;
2. from the Register of Annual Income Statements
(kontrolluppgiftsregistret) kept by the COS:
- the wage earner and employer
- the wages obtained from gainful employment and the period to
which the emoluments related
- the amount of preliminary taxes paid
- the work place number (arbetsställenummer);
3. from the Register of Income and Wealth (inkomst- och förmögen-
hetsregistret) kept by the COS:
- the income;
4. from the Central Register of Enterprises (centrala företags-
registret) kept by the COS:
- the name and form of the enterprise
- the number of work places
- the name, number, size, sector affiliation (sektortillhörighet),
location and business branch code (näringsgrenskod) of the
work places;
5. from the Register of Key Code Areas (registret över nyckelkod-
områden) kept by the COS:
- the area affiliation of the real properties (fastigheters
områdestillhörighet);
6. from the Property Taxation Registers (register över fastighets-
taxeringen) kept by the County Administrative Boards:
- the affiliation of real properties to a densely populated area
(fastigheters tätortstillhörighet);
7. from the Register kept by the Central Board of Real Property Data
(registret vid centralnämnden för fastighetsdata)
- the coordinates of real properties;
8. from the Register kept by the Gothenburg Office for the Taxation
of Sailors administered by the National Tax Board (registret vid
riksskatteverkets sjömansskattekontor i Göteborg):
- the persons paying sailor's tax and employed on Swedish vessels.
Under Section 22 electronic data processing (hereinafter "EDP"),
for the purposes stated in Section 1, of census information together
with other particulars could only take place in accordance with a
formal decision or with a permission granted in accordance with the
1973 Data Act (datalag 1973:89; hereinafter "the Data Act").
Under Section 23 the civic registration authorities could make
use of census information in order to check information obtained
through the civic registration. Such a control could, however, be
carried out by means of EDP only in accordance with a formal decision
or with a permission granted in accordance with the Data Act.
Both Sections 22 and 23 were to be applied in a restrictive way
(Bill pp. 32-33).
According to Section 24 the provisions on confidentiality in the
Secrecy Act applied.
b. The Secrecy Act
The protection under the Secrecy Act prevents documents from
being released, and imposes a secrecy obligation on individuals
handling the documents.
Under Chapter 9, Section 4 of the Secrecy Act, authorities
involved in producing statistics are obliged to keep inter alia census
information secret. There shall be no exception to this secrecy rule
insofar as the information pertains to personal and economic
circumstances attributable to an identifiable individual.
However, information regarding enterprises, deceased persons,
information needed for research or pertaining to statistics on
personnel and wages, and information in no way attributable to an
individual may be released, provided this could clearly not harm anyone
to which the information pertains or anyone closely related to such a
person.
The decision to release information is made by the authority
responsible for storing the information and may be appealed to an
Administrative Court of Appeal and further to the Supreme
Administrative Court.
Provided it is included in a public document information
regarding personal circumstances shall be protected for seventy years
and in all other cases for twenty years (Chapter 9, Section 4,
para. 2).
Under Chapter 13, Sections 3 and 4, secret information which has
been received by an authority as a result of its research or for filing
purposes shall be kept secret by that authority.
Chapter 14, Section 8 authorises the Government to release
information which should normally be kept secret provided there are
very strong reasons for the release. The provision is to be applied
very restrictively (Bill No. 1979/80:2, part A, p. 346).
c. The Data Act
A personal file created from information collected in the 1985
census has to be processed in compliance with the 1984 Act and the Data
Act.
In order to preclude the risk of undue encroachment upon privacy
the Data Inspection Board may issue regulations to the extent this has
not been done by Parliament or by the Government (Sections 6, 6a and
18).
Under Section 10 anyone may request an extract from the census
file of information pertaining to himself.
If there is reason to believe that a personal particular in a
personal file is incorrect the authority responsible for keeping the
file shall immediately take reasonable measures in order to verify the
correctness of the particular and, if necessary, correct or delete it
from the file (Section 8 para. 1).
d. The Act on Fines
Under Section 9 of the 1985 Act on Fines (lag 1985:206 om viten)
nobody shall be ordered to pay a previously fixed fine, if the purpose
for which the fine was imposed has ceased to exist at the time when the
court considers the matter. A fixed fine may be modified by the court
provided there are special reasons for this, e.g. a change in the
person's economic situation or if his failure to fulfil his obligation
may be regarded as excusable. However, it is not for the court to
assess the appropriateness of the order to fix the fine (Bill
1984/85:96, pp.55-56).
e. The Act on the Procedure before Administrative Courts
Under Section 9 of the Act on the Procedure before Administrative
Courts (förvaltningsprocesslag 1971:291) a hearing may be held before
such a court if it is considered to further the investigation or to
accelerate the proceedings. If a party requests a hearing before the
County Administrative Court or the Administrative Court of Appeal, a
hearing shall be held unless it is unnecessary or there are special
reasons not to hold it.
COMPLAINTS
1. The applicant complains that the obligation, under penalty of a
fine, to reveal information of a personal character by completing the
1985 and 1990 census forms was an unjustified interference with his
right to respect for his private and family life. He further complains
of the subsequent handling of the information submitted by him in the
censuses. He alleges a violation of Article 8 of the Convention.
2. The applicant complains that the singling out of certain
objectors to the 1985 census against whom proceedings were instituted
amounted to discrimination because of their political or other opinion.
He finally alleges that the information gathered by the censuses as
well as the results of voting inquiries (väljarundersökningar) carried
out within an election area (valkrets) after each election may be
matched and used for persecution or unfair treatment of inter alia
political opposition groups, certain regions, municipal districts, or
persons of a certain profession or education. He alleges a violation
of Article 14 of the Convention.
3. The applicant complains that the fine imposed on him amounted to
a criminal sanction; that he was refused a hearing and denied the right
to defend himself in person and to have witnesses examined on his
behalf before a civil court of law; and that those against whom penalty
proceedings were instituted were not singled out by a judicial
authority but by the COS, at the same time a party in the matter. He
alleges violations of Article 6 paras. 1, 3 (c) and 3 (d) of the
Convention.
4. The applicant complains that he did not have an effective remedy
before a national authority with regard to the refused hearing and the
fact that the trial was not held in public. He alleges a violation of
Article 13 of the Convention.
5. The applicant complains that he has been unlawfully held guilty
of an omission which did not constitute a criminal offence under
national or international law at the time when it was committed; that
the 1984 Act aimed at preventing public trials and denying him the
enjoyment of his rights under Article 6 paras. 2 and 3; and that his
obligation under the 1990 census to reveal information about his
travelling violated his right to liberty of movement. He alleges
violations of Articles 7 and 17 of the Convention as well as Article 2
paras. 1 and 3 of Protocol No. 4 to the Convention, respectively.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 4 August 1989 and registered
on 28 June 1990.
On 25 February 1991 the Commission decided that notice of the
application should be given to the respondent Government and that the
parties should be invited to submit written observations on the
admissibility and merits of the application, limited to the issues
under Articles 6, 8 and 14 of the Convention with regard to the 1985
census.
Following an extension of the time-limit the Government's
observations were submitted on 12 June 1991. The applicant's
observations in reply were submitted on 1 August 1991. Additional
observations were submitted by the applicant on 20 August, 5 and
25 September, 3 October 1991 and 24 January and 17 March 1992.
THE LAW
1. The applicant complains that the obligation to participate in the
1985 and 1990 censuses was an unjustified interference with his right
to respect for his private and family life and that he was ordered to
pay a fine for not submitting all particulars requested in the 1985
census. He further complains of the subsequent handling of the census
information. He invokes Article 8 (Art. 8) of the Convention, which
reads:
"1. Everyone has the right to respect for his private and
family life, his home and his correspondence.
2. There shall be no interference by a public authority
with the exercise of this right except such as is in
accordance with the law and is necessary in a democratic
society in the interests of national security, public
safety or the economic well-being of the country, for the
prevention of disorder or crime, for the protection of
health or morals, or for the protection of the rights and
freedoms of others."
a. The 1985 census
The Government admit that the obligation to complete the census
form could be regarded as an interference with the applicant's rights
under Article 8 para. 1 (Art. 8-1) of the Convention. They submit,
however, that the census was governed by the 1984 Act, which laid down,
with sufficient precision, the conditions under which the COS was
empowered to collect census information as well as to extract certain
particulars from the EDP files listed in the 1984 Act. Both the 1984
Act and the 1984 Ordinance were published in the Swedish Official
Journal (Svensk författningssamling). Thus, the legislation at issue
was accessible and its consequences foreseeable to the applicant.
Finally, the purpose for which the fine was imposed on the applicant
had not ceased to exist when the County Administrative Court considered
whether to order him to pay that fine. Thus, the decision was made in
accordance with the 1984 Act and the 1985 Act on Fines.
As regards the subsequent handling of the particulars submitted
by the applicant the Government refer to Section 22 of the 1984 Act,
according to which processing of information obtained in the census
together with other information by means of EDP was only to be done for
the purposes set out in Section 1 and in accordance with the Data Act.
They further refer to Section 23, according to which the civic
registration authorities could make use of information regarding places
of residence obtained in the census, provided the address in the
register was a different one from the one stated in the census form.
However, this updating of the civic registration could only take place
by means of EDP, provided permission had been given in accordance with
the Data Act. Moreover, the Data Inspection Board decided, in
application of Section 6, para. 9 of the Data Act, that the census
material was to be stored in the National Archives, following which the
material may not be released for EDP processing unless the receiver had
obtained a licence or a permit from the Data Inspection Board.
The applicant submits that the 1984 Act was only theoretically
accessible to the individual, as the Swedish Official Journal is not
available to ordinary citizens. Having regard to the difficult
substance of the census legislation with, for example, terms such as
"cross-processing" and "EDP files", terms which to most individuals
are incomprehensible, there was even less foreseeability than normally.
As regards the subsequent handling of the census information he
contends that the purpose of the 1985 census as defined in Section 1
of the 1984 Act is so vague that it authorises almost any research or
processing of information in one or several EDP files. It is admitted
by the Government that the term "research" is ambiguous. Research using
inter alia census information may continue without the individual's
knowledge for decades. There are no limitations as to the object for
the research. Whilst it may be work injuries it may as well be mental
or social handicaps, criminality etc. The definition of the term
"national planning" may depend on the particular political ideology,
the research may not be scientific and the term "general information"
may entail almost anything. He refers to Application No. 10473/83
(Dec. 11.12.85, D.R. 45 p. 121), in which the Commission examined, in
another context, the use of personal identity numbers in Sweden. In
that case it was submitted that there existed at the time 50.000 EDP-
based files in Sweden. Today the number may be about 100.000. The Data
Inspection Board has no factual possibility effectively to control the
use of these files. Thus, the vague definition of the purposes of the
census enables cross-processing of other, possibly unknown EDP files
than those referred to in Section 22 of the 1984 Act.
The applicant emphasises that the Government have given no
account of how the census information has been used, who has been
granted access to it and for what purposes, and whether these are in
line with the aims argued by the Government. However, information has
admittedly been released inter alia to municipal organs. Thus, further
risks for breaches of the confidentiality are being created.
In any case, the possibility of cross-processing census
information with information in case sheets or, generally, of studying
diseases or injuries, was almost completely concealed from the census
participants when they submitted their particulars. Subsequently, mass
media have revealed that extensive surveys of certain population groups
on the basis of census information and information in other EDP files
have been carried out for allegedly medical research purposes, without
the individuals having been informed about them.
Moreover, whilst there exists under Swedish law an obligation to
inform a private enterprise of the release of information on its
solvency and to whom that information has been released, the 1984 Act
does not impose any obligation on the authorities to inform an
individual of the release of census particulars or of the purpose of
the release, nor may he prohibit the release of such information.
Whilst it is also true that a person may check personal particulars
stored in an EDP file such a control can only be carried out if he is
aware of the existence of a particular file.
The Commission considers that the applicant's obligation to
participate in the 1985 census and the subsequent handling of the
census particulars constituted an interference with his right to
respect for his private and family life as guaranteed by Article 8
para. 1 (Art. 8-1) of the Convention (cf. No. 9702/82, Dec. 6.10.82,
D.R. 30 p. 239).
Consequently, it must be examined whether the interference was
justified under the terms of Article 8 para. 2 (Art. 8-2) of the
Convention. In order to be justified under this provision an
interference must satisfy three conditions: it must be "in accordance
with the law"; it must pursue one of the aims enumerated in Article 8
para. 2 (Art. 8-2); and it must be "necessary in a democratic society"
for one or more of those aims (see e.g. Eur. Court H.R., Margareta and
Roger Andersson judgment of 25 February 1992, para. 73, to be published
in Series A as no. 226).
The Commission recalls that the word "law" covers both written
and unwritten law. It refers primarily to domestic law and the phrase
means that any interference must be based on such law. However, the
phrase includes two requirements which go beyond simple compliance with
the domestic law. These requirements relate to the quality of the law
and can be summarised under the headings "accessibility" and
"foreseeability". Moreover, there must be a measure of legal protection
in domestic law against arbitrary interferences by public authorities
with the rights safeguarded by Article 8 para. 1 (Art. 8-1). A law
which confers a discretion on the authorities must indicate the scope
and manner of exercise of any such discretion with sufficient clarity
to afford the necessary protection (see the above-mentioned Margareta
and Roger Andersson judgment, para. 75).
The Commission's power to review compliance with domestic law is
limited: it is in the first place for the national courts to interpret
and apply that law (see e.g. Eur. Court H.R., Fredin judgment of 18
February 1991, Series A No. 192, p. 16, para. 50).
The Commission finds that the obligation to participate in the
1985 census was based on Sections 4 and 8 of the 1984 Act which defined
with sufficient foreseeability those who were to take part in it. In
this respect the 1984 Act conferred no discretion on the COS. The 1984
Act had been published in the Swedish Official Journal and was, thus,
accessible to the applicant. Moreover, the sentencing of the applicant
to a fine was based on Sections 18 and 20 of the 1984 Act. The
Commission, therefore, concludes that the applicant's obligation to
participate in the 1985 census was "in accordance with the law" for the
purpose of Article 8 para. 2 (Art. 8-2) of the Convention.
As regards the question whether the interference pursued a
legitimate aim the Government submit that the census was carried out
for much the same purpose as the 1981 census in the United Kingdom,
which was the subject of Application No. 9702/82 (loc.cit.), that is
in the interests of the economic well-being of the country. The
questions concerning housing particulars had the further aim of
protecting the health, as it supplied the authorities with information
on the general housing and sanitary standard of Swedish homes. Such
information was needed in order for the authorities to properly assess
factors likely to have an impact on the public health situation.
Furthermore, there is, in the present case, no indication that the
imposition of the applicant's fine and his subsequent sentence did not
pursue the same purposes as those of the 1984 Act and, thus, the
aforementioned aims under Article 8 para. 2 (Art. 8-2) of the
Convention.
The applicant contends that no causality has been shown to exist
between censuses carried out in Sweden and the economic well-being of
the country, nor has it been shown that the collecting of personal
particulars and the cross-processing of such information with already
existing EDP files pursued any of the aims stated in Article 8 para.
2 (Art. 8-2) of the Convention. In particular, he objects to the
Government's argument that the collecting of housing particulars also
pursued the aim of health protection in that it supplied the
authorities with information concerning health risks related to
occupation and work place. The last three to four censuses have not
resulted in any significant measures aiming at improving public health.
The Commission notes that censuses are common in the member
States of the Council of Europe. The object of such censuses is usually
to establish accurate statistical information about the population and
its housing conditions, this being in the interests of the economic
well-being of the country (cf. No. 9702/82, loc.cit.).
In the Commission's view there is, in the present case, no
substantiation of the applicant's allegation that his obligation to
participate in the 1985 census aimed at pursuing any aims other than
the economic well-being of Sweden and the protection of health. These
are both legitimate aims under Article 8 para. 2 (Art. 8-2) of the
Convention.
As regards the question whether the interference was "necessary
in a democratic society" the Government refer to the purposes of the
census as stated in Section 1 of the 1984 Act. The census material is
being used for planning and research, the latter term encompassing
different kinds of research, e.g. medical research and research needed
to further the techniques used in social planning and medical research.
For instance, the census material and the possibility under the 1984
Act to extract information from certain existing EDP files provides
researchers in the field of social medicine with an opportunity to
increase their knowledge of possible explanations of work injuries and
causes of death.
One of the purposes behind the 1985 census being medical research
the census material has to remain attributable to individual
participants by means of their personal identity numbers. This number
has frequently been used as an identifying key (sökbegrepp) for EDP-
based personal files and as a linking key (kopplingsnyckel) in the
matching or cross-processing (samkörning) of personal files. Thus, by
means of the personal identity number, researchers, for instance, in
the field of social medicine could benefit from the information in as
many ways as possible. For the same reasons the information will remain
identifiable, even though the 1985 census file is now stored in the
National Archives. However, the Secrecy and Data Acts, in particular
Chapter 9, Section 4 of the Secrecy Act, have prevented and continue
to prevent misuse of the census information.
The Government also refer to the decision of the Chancellor of
Justice of 15 October 1987 in which he found that the COS had complied
with the Secrecy Act when collecting and processing the census
information.
The Government further refer to Application No. 10473/83
(loc.cit.), in which the Commission found that there is no provision
in the Convention which as such expressly or implicitly prohibits the
use of personal identity numbers.
The Government finally refer to Application No. 9702/82
(loc.cit.), in which the Commission noted that the integrity of members
of the same family or household was provided for in the census. Similar
rules applied in the 1985 census.
The Government conclude that, having regard to the State's margin
of appreciation, the interference with the applicant's rights under
Article 8 (Art. 8) of the Convention answered a "pressing social need"
and must be considered "necessary in a democratic society".
The applicant contends that the interference with his rights
under Article 8 (Art. 8) of the Convention was not necessary in a
democratic society. Although he would consider the name, address, sex,
age, birth and death of a person as information the collection of which
could be regarded necessary in view of a pressing social need, this
information has traditionally been and is still being collected by the
civic registration authorities.
The applicant refutes the Government's assertion that the
collection of professional particulars was relevant for studies of the
relationship between, on the one hand, injuries and, on the other hand,
the work place and the health situation, as well as for studies of the
distribution of work. At the time of the census there existed already
a number of sources enabling such studies, for instance information
stored by the Social Insurance Offices (socialförsäkringskassorna), the
Register for Professional Injuries (yrkesskaderegistret), etc.
The applicant also objects to the Government's argument that the
obligation to include information pertaining to the heating of
dwelling-houses was necessary in order to draw up plans for future
allocation of energy and fuel resources and as a means of assessing the
general standard of dwelling-houses. The same information could be
found in the Register of Property Units (fastighetsregistret) and in
the declarations of property units (fastighetsdeklarationer).
Thus, as regards a large part of the information requested in the
census form, there was no pressing social need to obtain it by means
of a compulsory operation the fundamental aim of which was to increase
the control of individuals and their private lives. Pressing social
needs such as those of elderly people with low pensions and the
homeless could have been attended to in a better way by allocating the
vast resources which were spent on the census directly to those
population groups. Moreover, contrary to what the Government argue,
there is no tendency to strive to ease the burden on the public when
participating in censuses and to increase the protection of personal
integrity. The 1990 census form contained questions which were in many
aspects as penetrating as those in the 1985 census.
The applicant accepts that there is no provision in the
Convention prohibiting the use of a personal identity number. However,
the issue in the present case concerns the particular use of that
number as a means for enabling the attribution of a large amount of
penetrating information to a certain individual, as well as the
possibility of cross-processing and matching such information with
particulars from other EDP files, with the help of that number. The
1984 Act authorises certain cross-processing, but cross-processing may
also be carried out by those who are granted access to the census
material.
He further notes that it has been admitted by the Government that
the obligation in the census to indicate the personal identity number
enabled an attribution of particulars to an individual participant. It
has further been admitted that the personal identity numbers were and
are continuously being used inter alia for the cross-processing of EDP
files.
In the applicant's view the crucial issues in his case are
whether there is any limit on the mapping and control of individuals
by obliging them, under penalty of a fine, to submit information;
whether such an operation can be regarded necessary in a democratic
society; and whether at a certain point that society ceases to be a
democratic one.
The Commission recalls that the word "necessary" requires that
the interference corresponds to a "pressing social need" and, in
particular, is proportionate to the aim or aims pursued (see e.g. Eur.
Court H.R., Moustaquim judgment of 18 February 1991, Series A no. 193,
p. 19, para. 43). It must determine whether the reasons adduced to
justify the interference are "relevant and sufficient". Regard must
further be had to the margin of appreciation afforded to the
Contracting States (Eur. Court H.R., Olsson judgment of 24 March 1988,
Series A no. 130, pp. 31-32, paras. 67-68).
In the present case the Commission must decide whether the
particular operation of the 1985 census and, in particular, the
requirement of compulsory completion, backed up by sanctions, can be
regarded as "necessary in a democratic society" to achieve the
aforementioned legitimate aims (No.9702/82, loc.cit.).
The Commission first notes that the completed census forms are
treated with confidentiality. This is evident from the terms of the
form, which states that the information will be protected under the
Secrecy and Data Acts.
Moreover, the census provided for the possibility that any person
born in 1969 or earlier could complete a separate form from that
completed by other members of the household, if he wished the
information to remain confidential from those other persons.
However, as to the other features of the census it differs from
the one carried out in the United Kingdom and which was the subject of
Application No. 9702/82 (loc.cit.). In that case the names and the
addresses of the participants were not included in the census computer.
Thus, the particulars submitted by an individual participant in the
census were not attributable to him. Moreover, after the census the
questionnaires were locked away for 100 years before they are to be
passed on the Public Record Office.
In the present case the census information is admittedly
attributable to individual participants at least by means of their
personal identity numbers. Although subsequently the census information
has been stored in the National Archives it will retain this
attributability and may be released, without limitation in time, in
accordance with the Secrecy Act and the Data Act.
The Government have argued that the 1985 census was carried out
in the interests of the economic well-being of Sweden and the
protection of health and, thus, answered to "a pressing social need".
In particular, the attributability of the census information to
individual participants was and continues to be necessary for medical
research purposes. The Government have finally referred to the margin
of appreciation of the Contracting States under Article 8 (Art. 8) of
the Convention.
In the Commission's view regard must be had to the nature of the
census particulars. It cannot find that their storing and
attributability to individual participants could warrant the conclusion
that the census, in the way in which it was operated, was not necessary
in a democratic society. This remains so even taking into account the
COS's possibility to extract certain particulars from the other
registers mentioned in the 1984 Act. In any case, the applicant has not
shown in what way he has been affected by any of the above-mentioned
measures, nor is there any indication of census particulars being used
for persecution or unfair treatment of inter alia political opponents,
as alleged by the applicant in his complaint under Article 14
(Art. 14) of the Convention. In these circumstances and having regard
to the State's margin of appreciation the Commission finds that the
particular operation of the 1985 census could be regarded as necessary
in a democratic society for the aims argued by the Government.
It follows that this part of the complaint is manifestly ill-
founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
b. The 1990 census
The applicant further complains that also his obligation, under
penalty of a fine, to participate in the 1990 census, violated his
rights under Article 8 (Art. 8) of the Convention.
The Commission observes that the applicant has not been fined for
not completing the 1990 census form. He cannot, therefore, in this
respect, claim to be a victim under Article 25 (Art. 25) of the
Convention.
It follows that this part of the complaint is incompatible
ratione personae with the provisions of the Convention and must be
rejected under Article 27 para. 2 (Art. 27-2).
2. The applicant also complains that only certain objectors to the
1985 census were ordered, under penalty of a fine, to complete the
census form. He further alleges that the census information may be
matched with results of voting inquiries carried out within an election
area, this facilitating persecution or unfair treatment of inter alia
political opponents, certain regions, municipalities or holders of a
certain profession or education. He invokes Article 14 (Art. 14) of the
Convention, which reads:
"The enjoyment of the rights and freedoms set forth in this
Convention shall be secured without discrimination on any
ground such as sex, race, colour, language, religion,
political or other opinion, national or social origin,
association with a national minority, property, birth or
other status."
The Government submit that Section 18 of the 1984 Act authorised
the COS to request that fines be imposed on anyone refusing to
participate in the census. The COS provided the chief census
scrutinising officers with certain guidelines according to which all
non-participants were to be listed, except where their addresses were
uncertain or incomplete. In order to investigate his reasons for not
completing the census form the non-particpant was to be contacted.
Provided he had an excuse such as a serious illness, a social or
linguistic handicap or the fact that he had been living abroad for a
considerable time, no further action against him was to be taken. In
the remaining cases the officer was to notify the COS, which was to
report such objectors to the County Administrative Board in order to
have a fine imposed. However, a condition for such a request to be made
was that a census official had been in contact with the objector.
Moreover, the assessment whether a person should be considered as
having refused to complete the census form was to be carried out in a
restrictive way, so as to avoid that persons be treated as objectors
without there being sufficient reasons for such an assertion.
The Government further refer to the decision of the Chancellor
of Justice of 15 October 1987, concluding that it had not been shown
that the COS had not treated similar cases on an equal basis or that
irrelevant considerations had been taken into account when applying the
1984 Act to certain indivuals.
The Government submit that the sole purpose of the imposition of
fines was to induce individuals to complete the census forms and, thus,
to prevent the statistical information from being incomplete. The fact
that fines were not imposed on every person who did not return the
census form was not disproportionate to the aim of the census. In cases
where individuals explicitly declared that they did not intend to
complete the census form in its essential parts it was natural to have
fines imposed, having regard to the risk that also many others, for
various reasons, would not complete the form. Thus, the burden on those
who expressly refused or who otherwise fell within the category against
which the COS took measures must be tolerated. When it comes to
deciding the means of exerting pressure for a specific purpose like the
present one, the State's margin of appreciation must be considered to
be wider than if the issue had been a conviction for a criminal
offence. Moreover, the order to pay the fine was issued by a court
competent to examine the legality of the imposition of the fine. This
procedure protected the individual against arbitrary application of the
1984 Act.
The Government conclude that the imposition of fines was based
on objective criteria, had a legitimate aim and was not
disproportionate to that aim.
The applicant submits that his complaint does not only concern
the principles behind the guidelines issued by the COS, but also the
application of those guidelines. The 1984 Act makes no distinction
between different groups of census "objectors". Thus, the selective way
of fining only a small number of objectors was not in accordance with
the law. The census information which the COS aimed at obtaining from
the non-particpants considered as objectors by the imposition of fines
was of minor importance compared with the information which the
remaining almost 55.000 non-participants did not submit. The argument
that the aim of fining certain objectors was to obtain as complete
statistical information as possible is, therefore, contradictory. It
is admitted by the Government that the 126 objectors were ordered to
pay a fine for the purpose of deterring other potential objectors. In
the applicant's view there was, however, no proportionality between the
fining of those and the aim allegedly pursued. Thus, the fines must be
considered a punishment for particular cheek and support for a
political ideology opposed to the kind of individual control sought to
be achieved by the then Government. Moreover, the selection of the 126
objectors took place without any examination by a court. The fact that
domestic courts had competence to examine both the legality and the
imposition of the fine is irrelevant, as the applicant's reason for
refusing to complete his census form was based on his criticism of the
1984 Act. In any case, by the time the Supreme Administrative Court had
rendered its decision the processing of the census information had
already ended and the grounds for imposing the fine had ceased to
exist.
As regards the decision of the Chancellor of Justice the
applicant submits that it was almost exclusively based on the opinion
by the COS. No investigation was made in order to verify that none of
the 126 objectors were randomly selected or chosen on any other
distinguishing grounds in violation of the rule of equality before the
law, nor was any investigation carried out in order to ascertain how
many non-participants in the census refused to complete the census form
for reasons of principle and how many did not complete it for other
reasons such as passivity or practical obstacles. Furthermore, it
remains unclear from the Chancellor's decision how he has assessed the
confidentiality of the COS's handling of the census information.
The applicant concludes that fining him for not submitting all
census particulars made him bear an individual and excessive burden.
The Commission recalls that Article 8 (Art. 8) and the other
provisions of the Convention defining substantive rights are
supplemented by Article 14 (Art. 14) prohibiting discrimination in the
enjoyment of such rights. A measure which as such could be in
conformity with one of the normative provisions may nevertheless
violate that provision, taken in conjunction with Article 14 (Art. 14),
if it is applied in a discriminatory manner. However, there is no room
for the application of Article 14 (Art. 14), unless the facts at issue
fall within the ambit of one of the other substantive provisions of the
Convention (cf. Eur. Court H.R., Inze judgment of 28 October 1987,
Series A no. 126, p. 17, para. 36, with further reference).
The Commission has found above that the applicant's first
complaint falls within the ambit of Article 8 (Art. 8) of the
Convention. Article 14 of the Convention is therefore applicable.
For the purposes of Article 14 (Art. 14) of the Convention, a
difference in treatment is discriminatory if it has no objective and
reasonable justification, that is, if it does not pursue a legitimate
aim, or if there is no reasonable relationship of proportionality
between the means employed and the aim sought to be realised. The
Contracting States enjoy a certain margin of appreciation in assessing
whether and to what extent differences in otherwise similar situations
justify a different treatment in law. The scope of the margin will
vary according to the circumstances, the subject-matter and its
background (see the above-mentioned Inze judgment, p. 18, para. 41,
with further references).
The Government argue that the aim of fining the applicant and
certain other objectors was to reduce the overall number of objectors
so as to obtain as complete statistical information as possible.
The Commission observes that roughly 55.000 persons persisted in
not completing the census form following a reminder under Section 17
of the 1984 Act. Only some 800 of those were subsequently ordered,
under penalty of a fine, to complete the form. However, only about 120
persons were eventually fined. The fining was considered a practical
necessity for the administration of the census (No. 9702/82, loc.cit)
and there is no reason to believe that those who were fined were
selected on discriminatory grounds.
The applicant's complaint that the matching of census particulars
with other material could facilitate the use of the information for
persecution or unfair treatment of inter alia political opponents has
been considered above in relation to Article 8 (Art. 8) of the
Convention.
It follows that this part of the application is also manifestly
ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
3. The applicant further complains that the fine imposed amounted
to a criminal sanction; that he was refused a hearing and denied the
right to defend himself in person and to have witnesses examined on his
behalf before a court of law; and that those against whom criminal
proceedings were instituted were not selected by a judicial authority
but by the COS, at the same time a party in the matter. He invokes
Article 6 paras. 1, 3 (a) and 3 (d) (Art. 6-1, 6-3-a , 6-3-d) of the
Convention.
Article 6 para. 1 (Art. 6-1) reads, in its relevant parts:
"In the determination of his civil rights and obligations
or of any criminal charge against him, everyone is entitled
to a fair and public hearing ... by an independent and
impartial tribunal established by law. ..."
The Government submit that Article 6 (Art. 6) of the Convention
does not apply to the proceedings before the administrative courts, as
the fine at issue was not a criminal sanction. Should the Commission
consider Article 6 (Art. 6) applicable in the case the Government
consider the complaint manifestly ill-founded. The applicant's request
for a hearing before the County Administrative Court was rejected, a
hearing being deemed unnecessary. In his appeal to the Administrative
Court of Appeal he, although referring to his submissions to the County
Administrative Court, did not complain of that refusal, nor did he
request a hearing. He must, therefore, be considered to have waived his
right to a hearing.
The applicant contends that in the determination of his civil
obligations or, alternatively, his criminal charge he was denied a fair
and public hearing by an independent and impartial tribunal. He
objects to the Government's assertion that he waived his right to a
hearing before the Administrative Court of Appeal. In his appeal to
that Court he had referred to his submissions to the County
Administrative Court, including his request for a hearing before that
court which was ancillary to and formed part of his subsequent appeal.
He states that it is difficult to imagine a more explicit way of
appealing than by referring to the submissions before a lower court.
The Commission does not consider it necessary to pronounce itself
on the applicability of Article 6 (Art. 6) in the present case, as the
complaint is manifestly ill-founded for the following reasons.
The Commission notes that the applicant's request for a hearing
before the County Administrative Court of Stockholm was formally
rejected. However, in a letter to the Court the applicant had
previously accepted that, provided this was the view of the Court, the
case could be examined without a hearing. Whilst it is true that in his
appeal to the Administrative Court of Appeal the applicant referred to
his submissions before the first instance court, he made no express
request for a hearing before the Administrative Court of Appeal. He
must, therefore, be considered to have waived his right to a hearing
before that court (cf. Eur. Court H.R., HÃ¥kansson and Sturesson
judgment of 21 February 1990, Series A no. 171, pp. 20-21, paras. 66-
67).
As regards the remainder of the complaints under this provision
the Commission finds no indication of a violation of Article 6
(Art. 6) of the Convention.
It follows that this part of the application is manifestly ill-
founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
4. The applicant further complains of a violation of Article 13
(Art. 13) of the Convention in that he did not have an effective remedy
before a national authority with regard to the refused hearings and the
fact that the trial was not held in public. He invokes Article 13
(Art. 13) of the Convention, which reads:
"Everyone whose rights and freedoms as set forth in this
Convention are violated shall have an effective remedy
before a national authority notwithstanding that the
violation has been committed by persons acting in an
official capacity."
The Commission notes that in his request for leave to appeal to
the Supreme Administrative Court the applicant had the possibility to
renew his request for a hearing, and that he availed himself of this
possibility. The Commission has further found above that the complaint
regarding the court proceedings as such is manifestly ill-founded.
It follows that this complaint is also manifestly ill-founded
within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.
5. The applicant complains that he has been unlawfully held guilty
of an omission which did not constitute a criminal offence under
national or international law at the time when it was committed; that
the 1984 Act aimed at preventing public trials and denying him the
enjoyment of his rights under Article 6 paras. 2 and 3 (Art.6-2, 6-3);
and that his obligation in the 1990 census to reveal information
pertaining to his daily travels violated his right to liberty of
movement. He invokes Articles 7 and 17 of the Convention as well as
Article 2 paras. 2 and 3 of Protocol No. 4 (Art. 7, 17, P4-2-2, P4-2-3)
to the Convention.
However, the Commission finds no indication of a violation of
Article 7 or 17 (Art. 7, 17) of the Convention.
It follows that these complaints are manifestly ill-founded
within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.
As regards the complaint under Article 2 of Protocol No. 4
(P4-2) the Commission has found above that the applicant cannot claim
to be a victim under Article 25 (Art. 25) of the Convention with regard
to his obligation to submit information in the 1990 census. In any
case, he did not submit any census particulars pertaining to his daily
travels. Consequently, he cannot, in this respect, claim to be a victim
under Article 25 (Art. 25) of the Convention.
It follows that this complaint is incompatible ratione personae
with the provisions of the Convention and must be rejected under
Article 27 para. 2 (Art. 27-2).
For these reasons, the Commission, by a majority,
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the Commission President of the Commission
(H.C. KRÜGER) (C.A. NØRGAARD)