SEPARATE OPINION OF JUDGE WALSH

1 . I agree with the opinion of the President to the effect that Article 6 § 1 of the Convention was applicable in the present case.

2 . I also agree with his opinion that the applicant failed to avail herself of the remedies available to her by law against the authorities.

3 . There has therefore been no breach of Article 6 § 1.

4 . In my opinion there has been no breach of Article 13.

PARTLY CONCURRING AND PARTLY DISSENTING OPINION OF JUDGE CASADEVALL

( Translation )

1 . Like the President, I consider that Article 6 § 1 of the Convention was applicable in the present case. The majority of the Chamber held that Article 6 § 1 of the Convention was not applicable. As I have some doubts on that subject, I prefer to concur in the opinion of the Commission, both on the question of applicability and on the question of compliance with that provision.

2 . Under the Court's case-law, the applicability of Article 6 is subordinated to the effective existence of a dispute ( contestation ) over a right which can be said, at least on arguable grounds, to be recognised under domestic law and which is civil in character. The dispute must, moreover, “ be genuine and serious; it may relate not only to the actual existence of a right but also to its scope and the manner of its exercise ... ” .

3 . It is not disputed that the confidentiality obligation provided for in chapter 7, section 1, of the Secrecy Act was applicable in the present case. The contentious provision, as the majority notes, was clearly intended to protect the interest of patients in non-disclosure. Although the exception to that rule contained in section 71 of the Social Services Act (subsections 2 and 4) afforded psychiatrists a broad discretion in assessing the relevance of data for the purposes of Social Council investigations, that fact does not preclude the existence of a patient's right to non-disclosure. The limits on the psychiatrist's discretion are set out in a much more precise and restricted manner than that in issue in the Masson and van Zon v. the Netherlands judgment of 28 September 1995, Series A no. 327-A, pp. 19–20, § 51, where the Court held that Article 6 was inapplicable.

In my opinion, these factors suffice to support a finding that it could be said, on arguable grounds, that a “right” to prevent the disclosure of information of that type was recognised in Swedish law.

4 . In the applicant's submission, the exception to the confidentiality obligation provided for by section 71 did not apply to information given to the Social Council by her psychiatrist. There was, therefore, a genuine and serious dispute as to the extent of her right to confidentiality.

5 . The right in issue, which related to the applicant's health and which therefore concerned her private life, must be considered as a civil right. Consequently, Article 6 had to apply.

6 . In addition to these considerations, regard being had to the fact that the application was registered by the Commission more than five years ago (on 22 May 1992), I consider that if there is doubt as to applicability – and I have doubts in the present case – the principle “ pro actione ” or “pro-applicant” must prevail.

7 . I therefore conclude that Article 6 § 1 was applicable.

8 . As regards compliance with that provision, since the applicant had the possibility of applying to a court to protect her civil rights, I agree that there has been no violation. With respect to Article 13, having regard to my conclusion on Article 6, I agree with the Commission that no separate question arises. In any event, there has been no violation of Article 13 either.