CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 1 avril 1992

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }                        AS TO THE ADMISSIBILITY OF                         Application No. 16935/90                       by A.L.                       against Sweden           The European Commission of Human Rights (Second Chamber) sitting in private on 1 April 1992, the following members being present:                MM.   S. TRECHSEL, President of the Second Chamber                   G. JÖRUNDSSON                   A. WEITZEL                   J.-C. SOYER                   H. G. SCHERMERS                   H. DANELIUS              Mrs. G. H. THUNE              MM.   F. MARTINEZ                   L. LOUCAIDES                   J.-C. GEUS                   A.V. ALMEIDA RIBEIRO                Mr.   K. ROGGE, Secretary to the Second Chamber           Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;         Having regard to the application introduced on 23 February 1990 by A.L. against Sweden and registered on 27 July 1990 under file No. 16935/90;         Having regard to the report provided for in Rule 47 of the Rules of Procedure of the Commission;         Having deliberated;         Decides as follows:   THE FACTS         The applicant is a Swedish citizen born in 1945 and residing at Å. in the South of Sweden.         The facts of the case, as submitted by the applicant and as they appear from documents submitted by him, may be summarised as follows.         On 11 June 1985 the applicant was informed by his employer, the School Board of the Municipality of Åstorp, that it envisaged to dismiss him from his post as janitor at the municipal school "on account of personal reasons". On 12 August 1985 the School Board decided to dismiss the applicant in accordance with the notice given.         In connection with the Municipality's consideration of whether or not to dismiss the applicant his case was also examined by the doctor in charge of the Municipality's employees. Ms B.. This examination resulted in doctor B. writing a note of admittance dated 5 August 1985 to the local psychiatric clinic. The note described the applicant as suffering from certain paranoid symptoms. The applicant underwent two examinations, one in August and one in September 1985, by the Chief Physician of the psychiatric clinic, Mr J.. At the request of the applicant, the Chief Physician issued a medical certificate containing the conclusions of his examinations. These confirmed the existence of a lengthy paranoiac syndrom. A copy of this certificate was sent to the applicant.          Subsequently, when the applicant perused the records of the meetings of the competent municipal committees, he discovered that a document referred to as a "secret memorandum" regarding his situation had been distributed at a meeting on 3 June 1985 held by the School Board's working party. By letters of 2 December 1987 and 3 February 1988 he requested the Municipality to provide him with, amongst other documents, a copy of this memorandum. The Board sent him a number of the documents requested but not the so called secret memorandum. It informed him that no further documents existed. On 6 April 1988 the applicant renewed his request to have a copy of the secret memorandum. The Municipality now replied that this memorandum in fact corresponded to a document already sent to him. The applicant, who did not believe this information, renewed his request on 26 April 1988. When this last request was left without reply, the applicant availed himself of his right under the Freedom of the Press Act (tryckfrihetsförordningen) to appeal to the Administrative Court of Appeal (kammarrätten) against any refusal to hand out a document in the possession of a public authority. In its decision of 15 September 1988 the Administrative Court of Appeal of Gothenburg held that the Municipality had not taken any decision refusing the applicant access to any official document and that, accordingly, the Court was not empowered under the Freedom of the Press Act to entertain the appeal. The applicant appealed to the Supreme Administrative Court (regeringsrätten) which decided on 27 October 1988 not to alter the Court of Appeal's decision.         On 3 May 1989 the applicant again wrote to the Municipality requesting certain documents relating to his dismissal including the secret memorandum. On 26 May 1989 the Municipality sent the applicant copies of some of the documents. As to the memorandum it stated that this document could no longer be found. As to certain other documents it stated that no such documents had been established and the relevant information had instead been given orally at the relevant meetings. The applicant again appealed to the Administrative Court of Appeal. In its decision of 30 June 1989 it observed that the secret memorandum had not been found and that no written documents had been established containing the other pieces of information sought by the applicant. As, accordingly, the Municipality did not possess any of the documents requested, the Court of Appeal found that it could not examine the issue of whether or not these documents should be handed out by virtue of the Freedom of the Press Act. On 29 December 1989 the Supreme Administrative Court stated that it did not alter the Administrative Court of Appeal's decision.         Over the years 1989 - 1991 the applicant renewed his request for a copy of the secret memorandum on numerous occasions. The Municipality constantly replied that the document could not be found. On 15 occasions the applicant appealed to the Administrative Court of Appeal requesting it to order the Municipality to provide him with a copy of the memorandum. The Court repeatedly stated that the appeal had to be dismissed as the Municipality did not have the document requested. The applicant's appeals to the Supreme Administrative Court were unsuccessful.         During the same period the applicant also lodged three complaints with the Parliamentary Ombudsman (justitieombudsmannen).         The first complaint ended with a decision of 30 June 1989, in which the Ombudsman found no reason to examine the applicant's grievances, with one exception, as these concerned matters older than two years. The exception concerned the applicant's access to the official documents held by the Municipality. On this point the Ombudsman criticised the Municipality for not having taken any formal decision in response to the applicant's first requests to have a copy of the secret memorandum. He also criticised the Municipality for not having already at this first stage given the applicant the information as to the contents of this memorandum which the Municipality had provided in the proceedings before the Ombudsman.         His second complaint led to a decision of 16 February 1990 in which the Ombudsman found that there was no call for any action on his side in response to the applicant's allegations that the Municipality was wilfully withholding certain documents.         In reply to his third complaint the Ombudsman expressed, on 16 January 1992, serious criticism of certain delays on the part of the Municipality in answering a request for copies of certain official documents, among which the secret memorandum.         Parallel to his submitting the above complaints, the applicant also challenged the validity of the medical certificates established in 1985.         On 17 August 1990 he wrote a letter to doctor B. requesting her to explain the note of admittance of 5 August 1985. As he did not receive any reply he reiterated his request on 3 October 1990 adding that he wished to receive copies of all documents in his medical file. As he still did not receive any reply he submitted on 1 November 1990 a complaint to the National Board of Health and Welfare (socialstyrelsen) requesting at the same time confirmation that the Board had received his complaint. As the applicant did not get any such confirmation he reiterated his request on 18 December 1990. By letter dated 19 December the Board gave the applicant inter alia the following information. It had requested doctor B. to submit comments on the note of admission and had also requested copies of all relevant documents. In the light of doctor B.'s comments and the information contained in the applicant's medical files it found no reason to criticise doctor B. for the way in which she had dealt with the applicant's case. However, it reminded the applicant of his right to request the destruction of the documents contained in his medical file.         By letter of 15 January 1991 the applicant reiterated his complaint to the Board and his request for documents. The Board replied on 17 January that, as no new facts had emerged, it was not called upon to reexamine the case. It added that the applicant had already received all the documents in the Board's possession except doctor B.'s comments, a copy of which it now enclosed.         On 24 January 1991 the applicant wrote to the Government requesting them inter alia to examine the Board's handling of his two complaints. The Government replied on 7 March 1991 that it had taken cognizance of the Board's files and that it had not found any reason to take any action in response to the applicant's request.     COMPLAINTS         In so far as can be ascertained on the basis of the applicant's submissions he maintains that   1. the refusals to provide him with a copy of the secret memorandum were unlawful and have made it impossible for him to institute any successful action for damages against his former employer for unlawful dismissal, thereby violating his right under Article 6 para. 1 of the Convention of access to court;   2. the contents of the medical certificates established in 1985 and the authorities' handling of his complaints regarding these certificates amount to unjustified interferences with his personal integrity.     THE LAW   1.     The applicant complains under Article 6 para. 1 (Art. 6-1) of the Convention of a violation of his right of access to court as a result of the allegedly unlawful refusals to provide him with a copy of the secret memorandum. The relevant parts of Article 6 para. 1 (Art. 6-1) of the Convention reads:         "In the determination of his civil rights and obligations ...       everyone is entitled to a fair and public hearing ... by [a]       tribunal established by law."         The Commission first observes that its competence to examine this complaint is related to the question of the applicability of Article 6 para. 1 (Art. 6-1) to employment in public service. It has not found it necessary to decide whether this provision applies in the present case since, even assuming that it does, the applicant's complaint is in any event manifestly ill-founded for the following reasons.         It is clear that under Swedish law the applicant was entitled to bring proceedings before the courts in order to obtain compensation for damage caused by wrongful acts of the Municipality. The only question is whether the absence of the so-called secret memorandum would be an obstacle to an effective determination of his civil rights and, if so, whether this would engage the responsibility of the Swedish Government under the Convention.         The Commission notes that the circumstances under which the document concerned has disappeared have not been clarified and that it has not been shown that the document has been removed or destroyed for the purpose of depriving the applicant of evidence in court proceedings. Moreover, there must to some extent have existed alternative evidence. In particular, the applicant could, if he had instituted court proceedings, have requested a hearing as witnesses of those persons within the Municipality who had been involved in his dismissal.         Consequently, the applicant's rights under Article 6 (Art. 6) of the Convention to access to court and to a fair court hearing in the determination of his civil rights cannot be considered to have been violated, and this part of the application is therefore manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   2. The Commission has examined the applicant's remaining complaints in the light of the various elements of the case-file but has found no indication of any violation of his right to respect for his private life protected by Article 8 (Art. 8) of the Convention or of any other provision of the Convention. It has noted in particular that the applicant has never availed himself of his right to request the destruction of the documents contained in his medical file. Also the remaining complaints have accordingly to be rejected as manifestly ill- founded.           For these reasons, the Commission, unanimously,         DECLARES THE APPLICATION INADMISSIBLE.     Secretary to the Second Chamber        President of the Second Chamber               (K. ROGGE)                            (S. TRECHSEL)