PARTIALLY DISSENTING OPINION OF JUDGES PETTITI AND RUSSO

(Translation)

We voted with the majority in finding that there has been no breach of Articles 8 and 10 (art. 8, art. 10) but we hold that there has been a breach of Article 13 (art. 13).

We consider that a complaint to the Chancellor of Justice would have resulted only in an opinion being given and was not an effective remedy; the same is true of the Ombudsman. These two remedies taken together, then, do not satisfy the requirements of Article 13 (art. 13).

Individuals are not regarded as being parties to the release procedure before the Board (see the Supreme Administrative Court ’ s decision of 20 June 1984 ). No appeal lies to the Government or to the administrative courts against the Board ’ s decision as such to supply information to the requesting authority, nor was Mr. Leander involved in criminal proceedings such as would have entitled him to require the document to be released.

In the case specifically of registers which, being secret, make it impossible for a citizen to avail himself of the laws and regulations entitling him to have access to administrative documents, it is all the more necessary that there should be an effective remedy before an independent authority, even if that authority is not a judicial body.

The doctrine of act of State may be invoked by the Government improperly. The police authorities may even have committed a flagrantly unlawful act (voie de fait).

It should also be noted that the Swedish Ombudsman ’ s decisions are effective only in relation to civil servants and not as regards the applicant concerned.

Furthermore, even when combined, ineffective remedies cannot amount to an effective remedy where, as in the instant case, their respective shortcomings do not cancel each other out but are cumulative.

The six members of the Commission who held in their dissenting opinion that there had been a breach of Article 13 (art. 13), rightly commented on the lack of any effective remedy. In our view, it is not essential to make it a mandatory requirement that the authority responsible for hearing appeals should be able to award damages, but it is absolutely essential that an independent authority should be able to determine the merits of an entry in the register and even whether there has been a straightforward clerical error or mistake of identity - in which case the national-security argument would fall to the ground.

Consideration also needs to be given to the dangers of electronic links between the police registers and other States ’ registers or Interpol ’ s register. The individual must have a right of appeal against an entry resulting from a fundamental mistake, even if the source of the information is kept secret and is known only to the independent authority that has jurisdiction to determine the applicant ’ s appeal.

A supervisory system such as is provided by the Supreme Administrative Courts (in Belgium , France and Italy ) ought to afford an effective remedy, which is lacking at present in our view.

The State cannot be sole judge in its own cause in this sensitive area of human-rights protection.

We consequently hold that there has been a breach of Article 13 (art. 13).

[*]  Note by the Registrar: The case is numbered 10/1985/96/144.  The second figure indicates the year in which the case was referred to the Court and the first figure its place on the list of cases referred in that year; the last two figures indicate, respectively, the case's order on the list of cases and originating applications (to the Commission) referred to the Court since its creation.