Sweden

European Court of Human Rights: Gillberg v. Sweden

IRIS 2011-1:1/1

Dirk Voorhoof

Human Rights Centre, Ghent University and Legal Human Academy

The European Court of Human Rights has delivered a judgment in an interesting case with a peculiar mix of issues related to freedom of expression, academic research, medical data, privacy protection and access to official documents. The defendant state is Sweden, a country very familiar with the principle and practice of access to official documents. The right of access to official documents has a history of more than two hundred years in Sweden and is considered one of the cornerstones of Swedish democracy. The case shows how access to official documents, including research documents containing sensitive personal data, can be granted to researchers, albeit under strict conditions. It furthermore demonstrates that Sweden applies effective procedures to implement orders granting access to official documents: those who refuse to grant access to official documents after a court decision has so ordered can be convicted on the basis of criminal law. The case reflects the idea that progress in scientific knowledge would be hindered unduly if the research methodology of a study or scientific data analysis and the conclusions build on the data were not open to scrutiny, discussion and debate, albeit under strict conditions of privacy protection regarding medical data.

In this case, a Swedish professor at the University of Gothenburg, Mr. Gillberg, has been responsible for a long-term research project on hyperactivity of children and attention-deficit disorders. Certain assurances were made to the children's parents and later to the young people themselves concerning the confidentiality of the collected data. According to Mr. Gillberg, the university's ethics committee had made it a precondition for the project that sensitive information about the participants would be accessible only to himself and his staff and he had therefore promised absolute confidentiality to the patients and their parents. The research papers, called the Gothenburg study, were voluminous and consisted of a large number of records, test results, interview replies, questionnaires and video and audio tapes. They contained a very large amount of privacy-sensitive data about the children and their relatives.

Some years later, two other researchers not connected to the University of Gothenburg requested access to the research material. One had no interest in the personal data as such but in the method used and the evidence the researchers had for their conclusions, the other wanted access to the material to keep up with current research. Both requests were refused by the University of Gothenburg, but the two researchers appealed against the decisions. The Administrative Court of Appeal found that the researchers should be granted access to the material, as they had shown a legitimate interest and could be assumed to be well acquainted with the appropriate ways of handling confidential data. It was also considered to be important to the neuropsychiatric debate that the material in question be exposed to independent and critical examination. A list of conditions was set for each of the two researchers, which included restrictions on the use of the material and the prohibition of removing copies from the university premises. Notified by the university's vice-chancellor that the two researchers were entitled to access by virtue of the judgments, first Mr. Gillberg and later the university refused to give access to the researchers. The university decisions were annulled however by two judgments of the Administrative Court of Appeal. A few days later, the research material was destroyed by a few colleagues of Mr. Gillberg.

The Swedish Parliamentary Ombudsman brought criminal proceedings against Mr. Gillberg, who a short time later was convicted of misuse of office. Mr. Gillberg was given a suspended sentence and a fine of the equivalent of EUR 4,000. The university's vice president and the officials who had destroyed the research material were also convicted. Mr. Gillberg's conviction was upheld by the Court of Appeal and leave to appeal to the Supreme Court was refused. A short time later, Mr. Gillberg lodged an application with the Strasbourg Court of Human Rights. He complained in particular that his criminal conviction breached his rights under Articles 8 (right of privacy, including personal reputation) and 10 (freedom of expression) of the Convention. Mr. Gillberg also complained under Articles 6 (fair trial) and 13 (effective remedy) of the Convention that in the civil proceedings concerning access to the research material he did not have a standing before the Administrative Courts. Several times Mr. Gillberg’s requests for relief for substantive defects to the Supreme Administrative Court were refused because he could not be considered a party to the case. As Mr. Gillberg lodged his application before the Court more than six months after these judgments, this part of the application had been submitted too late and was rejected pursuant to Article 35 §§1 and 4 of the Convention. While on the face of it the case raised important ethical issues involving the interests of the children participating in the research, medical research in general and public access to information, the Court considered itself to only be in a position to examine whether Mr. Gillberg's criminal conviction for refusing to execute a court order granting access to official documents was compatible with the Convention. The Court found that the conviction of Mr. Gillberg did not as such concern the university's or the applicant's interest in protecting professional secrecy with clients or the participants in the research. That part was settled by the Administrative Court of Appeal's judgments. For reasons of inadmissibility of the application regarding the judgments of the Administrative Courts, the European Court was prevented from examining any alleged violation of the Convention by these judgments.

Regarding the remaining and hence crucial complaints under Article 8 and 10, Mr. Gillberg emphasised that there had been a promise of confidentiality to the participants in the research, as a precondition for carrying out his research and that the order to grant access to the research material and his conviction for refusing to do so amounted to a violation of his right to private life and his right to negative freedom of expression (the right to refuse to communicate).

The European Court left the question whether there had been an interference with Mr. Gillberg's right to respect for his private life for the purpose of Article 8 open, because even assuming that there had been such an interference, it found that there had been no violation of that provision. According to the Court, Convention States have to ensure in their domestic legal systems that a final binding judicial decision did not remain inoperative to the detriment of one party; the execution of a judgment is an integral part of a trial. The Swedish State therefore had to react to Mr. Gillberg's refusal to execute the judgments granting the two external researchers access to the material. The Court noted Mr. Gillberg's argument that the conviction and sentence were disproportionate to the aim of ensuring the protection of the rights and freedoms of others, because the university's ethics committee had required an absolute promise of confidentiality as a precondition for carrying out his research. However, the two permits by the committee he had submitted to the Court did not constitute evidence of such a requirement. The Swedish courts had moreover found that the assurances of confidentiality given to the participants in the study went further than permitted by the Secrecy Act. As regards Mr. Gillberg's argument that the Swedish courts should have taken into account as a mitigating circumstance the fact that he had attempted to protect the privacy and integrity of the participants in the research, the European Court agreed with the Swedish criminal courts that the question of whether the documents were to be released had been settled in the proceedings before the administrative courts. Whether or not the university considered that they were based on erroneous or insufficient grounds had no significance for the validity of the administrative courts’ judgments. It had thus been incumbent on the university administration to release the documents and Mr. Gillberg had intentionally failed to comply with his obligations as a public official arising from the judgments. The Court therefore did not find that his conviction or sentence was arbitrary or disproportionate to the legitimate aims pursued. It concluded, by five votes to two, that there had been no violation of Article 8 of the Convention.

With regard to the alleged violation of the right to freedom of expression under Article 10 of the Convention, Mr. Gillberg invoked his "negative right" to remain silent. The Court accepted that some professional groups indeed might have a legitimate interest in protecting professional secrecy as regards clients or sources and it even observed that doctors, psychiatrists and researchers may have a similar interest to that of journalists in protecting their sources. However, Mr. Gillberg had been convicted for misuse of office for refusing to make documents available in accordance with the instructions he received from the university administration after a Court decision; he was thus part of the university that had to comply with the judgments of the administrative courts. Moreover, his conviction did not as such concern his own or the university's interest in protecting professional secrecy with clients or the participants in the research. The Court unanimously concluded that there had been no violation of Article 10 of the Convention.

The judgment of the European Court is certainly an eye-opener for many actors in countries of the Council of Europe working in the domain of access to official or administrative documents, academic research, the processing of sensitive personal data and data protection authorities. The jurisprudence of the Swedish courts and of the European Court of Human Rights demonstrates that confidentiality of data used for scientific research and protection of sensitive personal data is to be balanced against the interests and guarantees related to transparency and access to documents of interest for the research society or society as a whole. The concurring opinion of Judge Ann Power, which is annexed to the judgment in the case of Gillberg v. Sweden, elaborates the importance of this approach by emphasising that “the public has an obvious interest in the findings and implications of research. Progress in scientific knowledge would be hampered unduly if the methods and evidence used in research were not open to scrutiny, discussion and debate. Thus, the requests for access, in my view, represented important matters of public interest”, without however disregarding the principles and values of protection of personal data.