Information Note on the Court’s case-law 135

November 2010

Gillberg v. Sweden - 41723/06

Judgment 2.11.2010 [Section III]

Article 8

Article 8-1

Respect for private life

Conviction of university professor for refusing to comply with court order requiring him to grant access to research materials: no violation

Article 10

Article 10-1

Freedom of expression

Conviction of university professor for refusing to compl y with court order requiring him to grant access to research materials: no violation

[This case was referred to the Grand Chamber on 11 April 2011]

Facts – The applicant, a university professor, was responsible for a research project on hyperactivity and attention-deficit disorders in children that was carried out between 1977 and 1992. According to the applicant, the university’s ethics committee had made it a precondition for the project that sensitive information about the participants would be accessible only to him and his staff, and he had therefore promised absolute confidentiality to the patients and their parents. In 2002 a researcher from another university and a paediatrician requested access to the research material. After their requests were refused by the university they appealed to the administrative court of appeal, which found that they had shown a legitimate interest and should be granted a ccess to the material on conditions which included restrictions on its use and a ban on removing copies from the university premises. The applicant, however, refused to hand over the material, which was eventually destroyed by colleagues. The applicant was subsequently prosecuted and convicted of misusing his office. His conviction was upheld by the court of appeal, which held that he had wilfully disregarded the obligations of his office by failing to comply with the judgments of the administrative court o f appeal.

Law – While on the face of it the case raised important ethical issues involving such matters as medical research, public access to information and the interests of children participating in research, the Court noted that the sole issue before it was whether the applicant’s conviction and sentence for disregarding his obligations as a public official were compatible with the Convention. The applicant did not represent the children or families and his complaints concerning the outcome of the civil proceedings were inadmissible as they had been lodged out of time.

Article 8: Leaving open the question whether there had been an interference with the applicant’s right to respect for his private life, the Court found that the conviction was in accordance with the domestic law and pursued the legitimate aims of preventing disorder and crime and protecting the rights and freedoms of others.

As to whether the interference had been necessary in a democratic society, the Court noted that, by virtue of its obli gation under the Convention to ensure that final binding judicial decisions do not remain inoperative to the detriment of one party, the respondent State had been under a duty to react to the applicant’s refusal to comply with the judgments granting the tw o external researchers access to the research material. The applicant had argued that the domestic authorities’ response had been disproportionate in that the court of appeal had failed to take two important mitigating factors – his obligations under the c onfidentiality undertakings, and his aim of protecting the integrity of the informants and research participants – into account. The Court noted, however, that there was no evidence that the university ethics committee had required an absolute promise of c onfidentiality, while the assurances the applicant had given to the research participants had, according to the domestic courts, gone beyond what was permitted by the domestic law. Further, as regards the protection of the integrity of the informants and p articipants, the question of whether the documents were to be released had been settled in the civil proceedings, during which the university had been given the opportunity to present its case. Whether or not it considered that the orders for release were based on erroneous or insufficient grounds, what mattered was that the university administration had understood that it was required to release the documents without delay and that for a considerable period the applicant had intentionally failed to comply with his obligations as a public official arising from the court orders. In rejecting these mitigating circumstances, the court of appeal had not overstepped its margin of appreciation or acted arbitrarily and the sentences it had imposed were not dispropo rtionate.

Conclusion : no violation (five votes to two).

Article 10: The Court accepted that doctors, psychiatrists and researchers may have a similar interest to journalists in protecting their sources and to lawyers in protecting professional secrecy with clients. However, the applicant had been convicted for misuse of office for refusing to make documents available in accordance with the instructions he had received from the university administration pursuant to the judgments of the administrative court of appeal. His conviction did not as such concern the uni versity’s or his own interest in protecting professional secrecy with clients or the participants in the research. That part had been settled by the administrative courts’ judgments, in relation to which the Court was prevented from examining any alleged v iolation of the Convention. In these circumstances, the Court was not convinced that the outcome of the criminal proceedings against the applicant had amounted to an interference with his rights within the meaning of Article 10. It did not, however, need t o examine that issue further since in any event, for the reasons stated with respect to the Article 8 complaint, there was nothing to suggest that the court of appeal’s judgment was arbitrary or disproportionate.

Conclusion : no violation (unanimously).

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

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