PARTLY DISSENTING OPINION OF JUDGE RYSSDAL

1.   I subscribe to the finding that no breach of Article 8 or Article 10 (art. 8, art. 10) has been established.

2.   As the Court has held that Article 8 (art. 8) did not in the circumstances require the communication to the applicant of the relevant information on him released to the military authorities, I also concur that the lack of communication of this information cannot entail a breach of Article 13 (art. 13). In that respect, Article 13 (art. 13) must be interpreted and applied so as not to nullify the conclusion already reached under Article 8 (art. 8).

3.   However, by virtue of Article 13 (art. 13), the applicant should have had available to him "an effective remedy before a national authority"; and I do not agree with the majority of the Court "that the aggregate of the remedies" set out in paragraphs 81 to 83 of the judgment "satisfies the conditions of Article 13 (art. 13) in the particular circumstances of the instant case".

4.   It is convenient first to identify the alleged breach of the Convention in respect of which Mr. Leander was entitled to an effective domestic remedy by virtue of Article 13 (art. 13). His basic grievance under Article 8 (art. 8) is described in the judgment (at paragraph 47) as being "that nothing in his personal or political background ... could be regarded as of such a nature as to make it necessary in a democratic society to register him in the Security Department ’ s register, to classify him as a ‘ security risk ’ and accordingly to exclude him from the employment in question".

5.   I concur with the Court that "for the purposes of the present proceedings, an effective remedy under Article 13 (art. 13) must mean a remedy that is as effective as can be, having regard to the restricted scope for recourse inherent in any system of secret surveillance for the protection of national security" (see paragraph 84 of the judgment).

On the other hand, precisely because the inherent secrecy of the control system renders the citizens ’ right to respect for private life especially vulnerable, it is essential that any complaint alleging violation of that right should be examined by a "national authority" which is completely independent of the executive and invested with effective powers of investigation. The "national authority" should thus have both the competence in law and the capability in practice to inquire closely into the operation of the personnel control system, and in particular to verify that no mistake has been made as to the scope and manner of exercise of the discretionary power conferred on the police and the National Police Board to collect, store and release information. Such an independent power of inquiry is all the more necessary as some of the Government ’ s instructions regarding the storing of information in the police register are themselves secret, a fact which, to my mind, of itself constitutes a considerable source of concern.

In so far as the "national authority" ascertains that a mistake has been made, the citizen affected should also, by virtue of Article 13, (art. 13) have the possibility - if need be by bringing separate proceedings before the courts - either of contesting the validity of the outcome of the secret personnel control, that is the decision not to employ him (or her), or of obtaining compensation or some other form of relief.

6.   The majority of the Court (at paragraph 83 of the judgment) include in the aggregate of relevant remedies Mr. Leander ’ s complaint to the Government that the National Police Board had, contrary to the provisions of the Personnel Control Ordinance, omitted to invite him to comment on the information contained in the register, which complaint was rejected by the Government in their decision of 14 May 1980. In my opinion, this avenue of recourse is not capable of being decisive for the purposes of Article 13 (art. 13), whether taken on its own or in conjunction with the other remedies relied on by the majority of the Court, namely complaint to the Parliamentary Ombudsman and the Chancellor of Justice. This is because, leaving aside the question of independence, it did not address Mr. Leander ’ s basic grievance under the Convention. Even if the requirement of secrecy did not permit Mr. Leander himself to be given the opportunity of commenting on the adverse material kept on him in the register, Article 13 (art. 13) guaranteed him a right of access to a "national authority" having competence to examine whether his Convention grievance was justified or not.

Consequently, of the aggregate of relevant remedies, there remains for consideration the possibility of applying either to the Parliamentary Ombudsman or to the Chancellor of Justice.

7.   The Parliamentary Ombudsman and the Chancellor of Justice exercise a general supervision over the activities of the executive branch of government; they do not have specific responsibility for inquiry into the operation of the personnel control system. I recognise that, by tradition in Sweden , the opinions of the Parliamentary Ombudsman and the Chancellor of Justice command great respect. However, the Parliamentary Ombudsman and the Chancellor of Justice have no power to render legally binding decisions; and it is not clearly established that, if in the opinion of the Ombudsman or the Chancellor a mistake has been made, the individual affected would have available to him an effective means to contest the validity of the employment decision or to obtain some other form of relief.

8.   I consequently conclude that there has been a breach of Article 13 (art. 13).