PARTLY CONCURRING AND PARTLY DISSENTING OPINION OF JUDGE RYSSDAL

1 . I am unable to share the majority's view that Article 6 § 1 of the Convention was not applicable in the present case. However, I consider that the provision was complied with and therefore concur with the majority's conclusion that Article 6 § 1 has not been violated.

2 . As regards the question whether an arguable claim existed, I attach weight to the fact, also mentioned in the judgment, that a duty of confidentiality applied to the kind of data in issue and was designed to protect the patient's interests in non-disclosure.

It is true that this rule of confidentiality did not apply with regard to information in the psychiatrist's possession which was potentially relevant to the Social Council's investigation into the need to take protective measures with respect to the applicant's under-age son and that the psychiatrist, as the imparting authority, enjoyed a considerable discretion in assessing what data would be of importance to the Social Council's investigation.

However, that discretion was not unfettered and was significantly more circumscribed than that in issue in the case of Masson and Van Zon v. the Netherlands (judgment of 28 September 1995, Series A no. 327-A, pp. 19–20, §§ 49–52), referred to in the majority's reasoning. In that case, the issue was whether a suspect, who was subsequently acquitted, had a right to compensation under certain provisions of Netherlands law for damage resulting from detention. A decisive factor leading to the Court's finding that no actual right to compensation was recognised under the national law was that the State had no obligation to pay even if the conditions set out in the relevant provision were fulfilled; an award was contingent on the competent court being of the opinion “that reasons in equity” exist therefor (ibid., § 51).

In contrast, the scope of the discretion in issue in this case was defined with greater precision. According to the relevant national provisions, a disclosure of medical data by the psychiatrist to the Social Council was permissible only in so far as the information was of importance to the latter's investigation into the need to take protective measures in respect of the son; were the disclosure to exceed those limits it would constitute a breach of the psychiatrist's obligation to maintain the confidentiality of the information.

In my view, the applicant could therefore arguably maintain that the national law recognised a right for her to challenge the disclosure of the data communicated by the psychiatrist to the Social Council.

3 . Moreover, the applicant disputed that there was a need to take protective measures with respect to her son. There was thus a serious disagreement between the applicant and the authorities capable of raising issues going to the lawfulness under Swedish law of the psychiatrist's decision to disclose the medical data concerned to the Social Council. That decision was moreover directly decisive for the applicant's right to maintain the confidentiality of the information at the psychiatric clinic. Accordingly, there was a dispute over a “right”.

4 . In addition, I am of the opinion that the right in issue, which concerned the protection of the confidentiality of the applicant's personal medical data, was civil in character.

5 . As to the question of compliance, the remedies available to her did in my view satisfy the requirements of Article 6 § 1. By bringing civil and/or criminal proceedings for breach of professional secrecy before the Swedish courts, the applicant would have been able to obtain a review, addressing both questions of fact and of law, of the merits of her claim that the psychiatrist had communicated to the Social Council medical information about her which had not been relevant to the assessment of any need to take protective measures with respect to her son. The fact that the applicant could not bring proceedings before the disclosure of the information to the Social Council did not in my opinion impair the very essence of the “right to a court”.

6 . In the light of the foregoing, I find no violation of Article 6 § 1 of the Convention in the present case.

7 . I agree that there has been no violation of Article 13 of the Convention.