En påtvingad registerkontroll? - En undersökning om förenligheten mellan icke-lagreglerade belastningsregisterkontroller och art. 8 EKMR

Sammanfattning: According to Article 8 of the ECHR, individuals have the right to the protection of their private life. The scope of the article includes an obligation for authorities to ensure that only persons with a legitimate interest have access to sensitive personal data stored by the authority and that the information be treated with care. This applies also to the Criminal Record, a register maintained by the Police. Through a legal-dogmatic method, the paper investigates how use of criminal record checks requested by employers, when there is no legal basis for this, relates to the right to privacy. According to the Swedish Law employers operating within some sectors, such as education and childcare, are required or have a possibility to control the criminal record of jobseekers. In these cases, jobseekers are requested to provide a targeted extract from the register. The legislator considers, thus, that these employers have legitimate interests in obtaining this sensitive personal information about job applicants. Employers in other sectors are not covered by the legislation. They can, however, gain access to the criminal record of possible job applicants by using the applicants ́ right to inspect of their criminal record. By making this a condition for a job application, any employer may get extract from the register providing criminal record of job applicants. In addition, this extract would not be targeted (as required for legitimate sectors) but include the whole record about the person. According to the paper, the design of the legal regulation indicates that the requirement for careful handling is not fulfilled. It is unclear how making available should be understood. Depending on the interpretation of the term, the current regulation can be both in accordance with the requirement and contrary to the requirement. With the application of a liberal rights-based theory that safeguards the protection of individual rights, the paper considers that it is irrelevant how making available is to be understood because the requirement for caution is not fulfilled. The paper thus considers that the unregulated register check is contrary to Article 8(1) ECHR.