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Z. v. Finland

Publisher Council of Europe: European Court of Human Rights
Publication Date 25 February 1997
Citation / Document Symbol 9/1996/627/811
Cite as Z. v. Finland, 9/1996/627/811, Council of Europe: European Court of Human Rights, 25 February 1997, available at: http://www.refworld.org/docid/3ae6b71d0.html [accessed 22 September 2014]
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EUROPEAN COURT OF HUMAN RIGHTS

CASE OF Z v. FINLAND

(9/1996/627/811)

JUDGMENT

STRASBOURG

25 February 1997

The present judgment is subject to editorial revision before its reproduction in final form in the Reports of Judgments and Decisions for 1997. These reports are obtainable from the publisher Carl Heymanns Verlag KG (Luxemburger Straße 449, D-50939 Köln), who will also arrange for their distribution in association with the agents for certain countries as listed below.

List of Agents

Belgium: Etablissements Emile Bruylant (rue de la Régence 67, B - 1000 Bruxelles)

Luxembourg: Librairie Promoculture (14, rue Duchscher (place de Paris), B.P. 1142, L - 1011 Luxembourg-Gare)

The Netherlands: B.V. Juridische Boekhandel & Antiquariaat A. Jongbloed & Zoon (Noordeinde 39, NL - 2514 GC 's-Gravenhage)

SUMMARY

Judgment delivered by a Chamber

(*This summary by the registry does not bind the Court)

Finland - orders requiring doctors and psychiatrist to give evidence, seizure of medical records and their inclusion in investigation file without the patient's prior consent in criminal proceedings concerning her husband, limitation on the duration of the confidentiality of the medical data concerned and publication of her identity and HIV infection in a court judgment given in those proceedings (chapter 17, Article 23 3, of the Code of Judicial Procedure; chapter 4, section 2(2), of the Coercive Means of Criminal Investigation Act 1987; and section 9 of the Publicity of Court Proceedings Act 1984)

I. Article 8 of the Convention

A. Scope of the issues before the Court

Not established that there had been a leak of confidential medical data concerning the applicant for which the respondent State could be held responsible under Article 8 - nor did the Court have jurisdiction to entertain the applicant's allegation that she had been subjected to discriminatory treatment - it would therefore confine its examination to the other matters complained of.

B. Whether there was an interference with the applicant's right to respect for her private and family life

The various measures complained of constituted interferences with the applicant's right to respect for her private and family life.

C. Whether the interferences were justified

1. In accordance with the law

Nothing to suggest that the contested measures did not fulfil this requirement.

2. Legitimate aim

Investigative measures:"prevention of ... crime" and "protection of the rights and freedoms of others".

Ten-year limitation on the confidentiality of the medical data:protection of the rights and freedoms of others.

Publication of applicant's name and health condition in Court of Appeal judgment:doubtful that this pursued a legitimate aim but not necessary to decide the issue in view of conclusion below.

3. Necessary in a democratic society

Statement of general principles concerning importance of respecting confidentiality of health data - these considerations were especially valid as regards protection of confidentiality of information about a person's HIV infection, disclosure of which not compatible with Article 8 unless justified by an overriding requirement in the public interest - State measures compelling communication or disclosure of such information without consent of patient called for most careful scrutiny on the part of the Court, as did the safeguards designed to secure effective protection - at the same time not for Court to substitute its views for those of national authorities as to relevance of evidence used in judicial proceedings - these also enjoyed a margin of appreciation in striking fair balance between interest of publicity of court proceedings and interests in confidentiality of personal data.

Against this background, Court examined each measure in turn, whilst noting at the outset that the decision-making process did not give rise to misgivings and that remedies were apparently available for challenging the seizure and for having the limitation on the confidentiality order quashed.

(a) Orders requiring the applicant's doctors and psychiatrist to give evidence:measures were taken in context of the applicant availing herself of right not to give evidence against her husband, X - object was exclusively to ascertain when X aware of or had reason to suspect his HIV infection, which was capable of being decisive for whether guilty of attempted manslaughter in relation to certain sexual offences - no doubt that national authorities entitled to think that very weighty public interests in favour of investigation and prosecution of X for attempted manslaughter - the resultant interference with applicant's Article 8 rights was subjected to important limitations and safeguards against abuse - no reason to question extent to which doctors required to give evidence - especially because proceedings were confidential and highly exceptional, the contested orders were unlikely to have deterred potential and actual HIV carriers from undergoing blood tests and seeking medical treatment.

Conclusion: no violation (eight votes to one).

(b)Seizure of the applicant's medical records and their inclusion in the investigation file:measures were complementary to the above orders, their context and object were the same and they were based on same weighty public interests - they were subject to similar limitations and safeguards against abuse - admittedly, unlike those orders, the seizure had not been authorised by a court but had been ordered by the prosecution - however, this fact could not in itself give rise to any breach since conditions for seizure were essentially the same as those for the orders to give evidence, two of which had been given by the City Court prior to the seizure and the remainder given shortly thereafter - would have been possible for applicant to challenge seizure before City Court - no reason to doubt national authorities' assessment that necessary to seize all the material concerned and to include it in investigation file.

Conclusion: no violation (eight votes to one).

(c)Duration of the order to maintain the medical data confidential:ten-year limitation on confidentiality order did not correspond to wishes or interests of litigants in the proceedings -production of medical information and material in issue without applicant's consent meant that she had already been subjected to serious interference with her private and family life - further interference which she would suffer if the data were to be made accessible to the public after ten years, in 2002, was not supported by overriding reasons.

Conclusion:violation in the event of order to make the material accessible to the public in 2002 being implemented (unanimously).

(d)Disclosure of the applicant's identity and HIV infection in the Court of Appeal's judgment:not supported by any cogent reasons.

Conclusion: violation (unanimously).

II. Article 13 of the Convention

Allegations as to lack of effective remedies had been taken into account in relation to Article 8.

Conclusion: not necessary to examine (unanimously).

III. Article 50 of the Convention

A. Non-pecuniary damage: compensation awarded on equitable basis.

B. Costs and expenses: partial reimbursement ordered.

Conclusion: respondent State to pay specified sums to applicant (unanimously).

Court's case-law referred to

6.9.1978, Klass and Others v. Germany; 13.6.1979, Marckx v. Belgium; 22.10.1981, Dudgeon v. the United Kingdom; 26.3.1987, Leander v. Sweden; 8.7.1987, W. v. the United Kingdom; 27.11.1992, Olsson v. Sweden (no. 2); 24.6.1993, Schuler-Zgraggen v. Switzerland; 13.7.1995, Tolstoy Miloslavsky v. the United Kingdom; 7.8.1996, Johansen v. Norway; 26.9.1996, Manoussakis and Others v. Greece

In the case of Z v. Finland[fn1] ,

The European Court of Human Rights, sitting, in accordance with Article43 of the Convention for the Protection of Human Rights and Fundamental Freedoms ("the Convention") and the relevant provisions of Rules of Court B[fn2] , as a Chamber composed of the following judges:

Mr R. Ryssdal, President,

Mr F. Gölcüklü,

Mr L.-E. Pettiti,

Mr C. Russo,

Mr J. De Meyer,

Mr R. Pekkanen,

Mr G. Mifsud Bonnici,

Mr J. Makarczyk,

Mr B. Repik,

and also of Mr H. Petzold, Registrar, and Mr P.J. Mahoney, Deputy Registrar,

Having deliberated in private on 31 August 1996 and 25January 1997,

Delivers the following judgment, which was adopted on the last-mentioned date:

PROCEDURE

1. The case was referred to the Court by the European Commission of Human Rights ("the Commission") on 25 January 1996, within the three-month period laid down by Article32 1 and Article47 of the Convention. It originated in an application (no.22009/93) against the Republic of Finland lodged with the Commission under Article25 by a Finnish national, Mrs Z, on 21 May 1993.

The Commission's request referred to Articles 44 and 48 and to the declaration whereby Finland recognised the compulsory jurisdiction of the Court (Article46). The object of the request was to obtain a decision as to whether the facts of the case disclosed a breach by the respondent State of its obligations under Articles 8 and 13 of the Convention.

2. In response to the enquiry made in accordance with Rule 35 3(d) of Rules of Court B, the applicant stated that she wished to take part in the proceedings and designated the lawyers who would represent her (Rule 31).

3. The Chamber to be constituted for this purpose included ex officio Mr R. Pekkanen, the elected judge of Finnish nationality (Article 43 of the Convention), and Mr R. Ryssdal, the President of the Court (Rule 21 4(b)). On 8 February 1996, in the presence of the Registrar, the President drew by lot the names of the other seven members, namely Mr F. Gölcüklü, Mr L.-E. Pettiti, Mr B. Walsh, Mr C.Russo, Mr J. De Meyer, Mr G. Mifsud Bonnici and Mr B. Repik (Article43 in fine of the Convention and Rule21 5). Subsequently Mr J. Makarczyk, substitute judge, replaced Mr Walsh, who was unable to take part in the further consideration of the case (Rules 22 1 and 24 1).

4. As President of the Chamber (Rule21 6), Mr Ryssdal, acting through the Registrar, consulted the Agent of the Finnish Government ("the Government"), the applicant's lawyer and the Delegate of the Commission on the organisation of the proceedings (Rules 39 1 and40). Pursuant to the order made in consequence on 25 March 1996, the Registrar received the applicant's memorial on 29 May 1996 and the Government's memorial on 31 May 1996. On 5 July 1996 the Secretary to the Commission indicated that the Delegate would submit his observations at the hearing.

5. On various dates between 5 July and 9 August 1996 the Commission produced a number of documents, as requested by the Registrar on the President's instructions.

6. On 20 June 1996 the Registrar received from the Government a request to hold the hearing set down for 29 August 1996 in camera. The President invited the Delegate of the Commission and the applicant to comment on the Government's request. On 24 June 1996, the Registrar received the applicant's observations on the matter.

In the light of the observations submitted by the Government and the applicant and the sensitive nature of the case, the Chamber decided on 26 June 1996 that the hearing should be held in camera, being satisfied that there were exceptional circumstances for the purposes of Rule 18 warranting a derogation from the principle of publicity applying to the Court's hearings.

7. In accordance with the President's and the Chamber's decisions, the hearing took place in camera in the Human Rights Building, Strasbourg, on 29 August 1996. The Court had held a preparatory meeting beforehand.

There appeared before the(a) for the Government

Mr H. Rotkirch, Director for Legal Affairs,

Ministry for Foreign Affairs, Agent,

Mr A. Kosonen, Legal Adviser, Ministry for Foreign Affairs, co-Agent,

Mr I. Liukkonen, Legal Adviser, Ministry of Justice,

Mr J. Tenneberg, Legal Adviser, National Board of Medical Affairs, Advisers;

(b) for the Commission

Mr P. Lorenzen, Delegate;

(c) for the applicant

Mr M. Fredman, asianaja, advokat,

Mr M. Scheinin, Associate Professor of Law, University of Helsinki, Counsel.

The Court heard addresses by Mr Lorenzen, Mr Fredman, MrScheinin, Mr Rotkirch and Mr Kosonen, and also replies to its questions.

8. On 1 October 1996, the Government supplied the Court with further particulars in reply to a question put at the hearing.

AS TO THE FACTS

I. Particular circumstances of the case

A. Introduction

9. The applicant is a Finnish national, resident in Finland, and was at the time of the events which gave rise to her complaints under the Convention married to X, who was not Finnish. They divorced on 22September 1995. They are both infected with the human immunodeficiency virus (HIV).

10. On 10 March 1992 the Helsinki City Court (raastuvanoikeus, rådstuvur tten) convicted X and sentenced him to a suspended term of imprisonment for rape on O. on 12 December 1991. The City Court held the trial in camera and ordered that the documents submitted in the case remain confidential for a certain period.

11. On 19 March 1992 X was informed of the results of a blood test performed on 6 March 1992, indicating that he was HIV positive.

B. Further complaints of sexual offences lodged againstX

12. In early March 1992, following a complaint of a sexual offence lodged by M., the police opened an investigation into attempted manslaughter, suspecting X of having deliberately subjected M. to a risk of infection with HIV on 1 March.

According to the facts as established by the Commission, during a police interview on 5 March 1992 M. identified X as the perpetrator and the police informed her that X's spouse, the applicant, was HIV positive. On 10 April 1992, it advised M. that X was also infected.

At the hearing before the Court the Government disputed the Commission's finding that the police had informed M. that the applicant was an HIV carrier. The Delegate replied that the finding had been based on corroborative evidence in the police investigation record and the minutes of the ensuing proceedings before the City Court (see paragraph 19 below).

13. M.'s boyfriend T. met the applicant in mid-March 1992 and asked her whether her husband was an HIV carrier. On 6 April 1992 T. telephoned her and cited passages from confidential court documents relating to the trial mentioned in paragraph 10 above. On 14 April T. was interviewed by the police as to the content of this conversation.

14. On 7 April 1992 the police attempted to interview the applicant but, as she was married to X, she relied on her right under Finnish law not to give evidence against her spouse (chapter 17, Article 20 1 of the Code of Judicial Procedure (oikeudenk ymiskaari, r ttegångsbalk)).

15. On 22 April 1992 the public prosecutor charged X with sexual assault on M. On 20 May 1992 M. brought a charge against X of attempted manslaughter.

16. On 10 September 1992, following complaints of rape lodged by P.-L. and P., X was arrested and detained on remand, on suspicion of attempted manslaughter by having raped the complainants earlier that month and thereby deliberately subjected them to a risk of HIV infection.

17. On 14 September 1992 the police interviewed the applicant but she again refused to give evidence against her spouse. She feared that the documents in the case, including any statement she made, would not remain confidential.

18. On 18 September 1992 R. lodged a complaint with the police against X for rape committed on 19 December 1991. The police officer who recorded the complaint added to the record a statement that the applicant had already been found to be HIV positive in 1990.

The Government submitted at the Court's hearing that it was R. who had told this to the police.

The police opened an investigation into attempted manslaughter in this case also.

On 7 October and 2 December 1992 and 24 March 1993, the public prosecutor read out in court charges against X of attempted manslaughter in respect of offences committed against M. on 1 March 1992, against P. on 10 September 1992 and against P.-L. on 5 and 6September 1992. Such charges were also brought by P.-L. on 16December 1992 and by R. on 19 May 1993 in relation to offences committed respectively on 31 August 1992 and 19 December 1991.

C. Orders obliging the applicant's doctors and psychiatrist to give evidence

19. On 22 April 1992, at the City Court's first hearing, held in public, X refused to reply to a question put by M.'s counsel as to whether the applicant was also an HIV carrier.

At a further hearing on 6 May 1992, the City Court decided at the parties' request that the case should be heard in camera. M. confirmed that she had been informed by the police that the applicant was HIV positive and T. gave evidence on the content of his telephone conversation with the applicant on 6 April 1992 (see paragraph 13 above).

20. On 18 May 1992 and with X's consent, L., senior doctor at the hospital where X and the applicant had been treated, transmitted copies of X's medical records to the public prosecutor. These had been edited so as to omit all references to the applicant.

21. The City Court summoned the applicant to appear before it as a witness on 20 May 1992, but she again relied on her right not to give evidence in a case concerning her husband.

22. On 27 May 1992 M.'s counsel informed the public prosecutor that the copies of X's medical records appeared to be incomplete. That same day the public prosecutor asked the police to obtain statements from senior doctor L. and any other doctors who had been treating X, whether as experts or ordinary witnesses, in order to obtain information from them on when X had become aware of his HIV infection.

23. On 12 August 1992, despite his objections, the City Court ordered senior doctor L. to give evidence. He disclosed to the Court medical data concerning the applicant which had been omitted from the copies of X's medical records referred to in paragraph 20 above.

The City Court, by way of an interim measure, ordered that the court file, including the transcripts of senior doctor L.'s evidence, be kept confidential.

24. At the hearings of the City Court on 23 September and 18November 1992, X refused to answer a question put by counsel for the complainants (M., P.-L., P. and R.) as to whether the applicant was HIV positive. On 30 December 1992, counsel asked him when he had become aware that she was infected. However, X again refused to answer.

25. On 23 September 1992 senior doctor L. complained to the Parliamentary Ombudsman (eduskunnan oikeusasiamies, riksdagens justitieombudsman) about the court decision ordering him to give evidence. In an opinion of 5 February 1993 the Parliamentary Ombudsman expressed the view that the domestic law had not been violated and that the City Court had properly balanced the public interest in investigating crime against the applicant's interests in protecting the confidentiality of the information in question.

26. At a court hearing on 27 January 1993, Dr K., who had also treated the applicant, was, despite his objections, required to give evidence as a witness for the prosecution and to disclose information about the applicant. He did so.

27. On 6 February 1993 the police interviewed Dr S.V. as an expert. He provided them with general information on HIV infection and contamination.

28. On 10 February 1993 the public prosecutor requested the police to interview the applicant's doctors as witnesses in the investigation into the charges against X of attempted manslaughter (see paragraph 18 above). However, since all the doctors concerned refused, the matter had to be referred to the City Court.

29. Despite his renewed objections, senior doctor L. was again heard as a prosecution witness at the City Court's hearing of 3 March 1993. He once again disclosed information about the applicant. Before giving evidence he read out a letter dated 23 February 1993 which the applicant had sent him. It stated:

"... The case concerns criminal charges against my husband which are considered to outweigh a doctor's obligation and right to respect secrecy. It seems to me that you have been called to appear as a witness because I myself have invoked my right ... to refuse to give evidence. In your capacity as a doctor you are therefore likely to be asked questions which I, as X's spouse, have the right to refuse to reveal. The information which you have emanates from me and has been obtained by you because it has been my understanding that it would remain confidential ... [N]or could I have imagined that [such] information could be used for the purpose of criminal proceedings in which my husband is facing charges. As I see it, the hearing of you as a witness is merely aimed at circumventing my lawful right to refuse to give evidence against my husband ...

... I therefore request you to refer to these points, when you are being asked to give evidence in matters which concern only me. It is my opinion that you should not be obliged to give evidence in those matters and that the charges should be dealt with in such a way that I am not in any way forced to take part in the establishment of the [facts]. [I] am under no obligation to do so ..."

30. In the course of three hearings on 17 March, 7 April and 5 May 1993, the City Court heard evidence from the applicant's psychiatrist, Dr K.R., and a number of medical doctors who had treated her, namely Drs V., S.-H., S., K., T., R. and apparently also Dr J.S. It also heard Dr S.V., who had interviewed Z for research purposes. The prosecution had called them as witnesses and the court had ordered them to give evidence, although they had objected to doing so.

At the hearing on 17 March, Dr D. confirmed that a blood test performed in August 1990 had shown that the applicant was HIV positive.

At the hearing on 5 May 1993 the applicant agreed to give evidence since the matters which related to her had already been dealt with by the City Court in other ways. In her evidence she stated amongst other things that she had not been infected with HIV byX.

D. Seizure of medical records and their inclusion in the investigation file

31. On 8 and 9 March 1993 the police carried out a search at the hospital where the applicant and X had occasionally been treated. The police seized all the records concerning the applicant and appended copies of these to the record of the investigation concerning the charges against X of attempted manslaughter. These measures had been ordered by the prosecution. After photocopying the records the police returned them to the hospital.

The seized records comprised some thirty documents including the following statements:

"...

25 September 1990: [The applicant was] found to be HIV positive at the beginning of the autumn of 1990. [She] guesses that she was contaminated at the end of 1989 ... [She] is married to a [foreign] citizen, whom she thinks is [HIV] negative.

...

5 June 1991: ... [The applicant's husband] completely denies that he might have an HIV infection ...

7 June 1991: ... According to [the applicant], [her] husband probably has an HIV infection too but [he] has not gone to be tested ...

23 December 1991: ... [The applicant's husband] has not gone for HIV tests and is of the opinion that he is not a carrier of the virus ..."

32. The police also seized results from a large number of laboratory tests and examinations concerning matters other than the existence of HIV in the applicant's blood, including information about her previous illnesses, her mental state and a survey into her quality of life based on a self-assessment.

On 10 March 1993 the City Court decided to include the copies of the seized records in its case file. On the same day it heard DrS.V. as an expert called by the prosecution.

E. Conviction of X by the City Court and appeals to the Helsinki Court of Appeal

33. On 19 May 1993 the City Court, amongst other things, convicted X on three counts of attempted manslaughter committed on 1 March, 31August and 10 September 1992 but dismissed the charge of attempted manslaughter for the offence committed on 19 December 1991 and, as regards the latter, convicted him of rape instead. The City Court sentenced him to terms of imprisonment totalling seven years.

The City Court published the operative part of the judgment, an abridged version of its reasoning and an indication of the law which it had applied in the case. The City Court ordered that the full reasoning and the documents in the case be kept confidential for ten years. Both the complainants as well as X had requested a longer period of confidentiality.

34. The complainants, X and the prosecution all appealed against the City Court's judgment to the Helsinki Court of Appeal (hovioikeus, hovr tten).

35. At a hearing in camera before the Court of Appeal on 14 October 1993, all the appellants requested that the duration of the confidentiality order be extended; an extension to thirty years was discussed. X's lawyer also informed the court about the applicant's wish that the order be extended.

36. In a judgment of 10 December 1993, a copy of which was made available to the press (see paragraph 43 below), the Court of Appeal, inter alia, upheld the conviction of X on three counts of attempted manslaughter and, in addition, convicted him on two further such counts related to offences committed on 19December 1991 and 6 September 1992. It increased his total sentence to eleven years, six months and twenty days' imprisonment.

As regards the two additional counts of attempted manslaughter, the judgment stated:

"... According to [X - mentioned by his first names and family name] he found out that he was suffering from an HIV infection on 19 March 1992 ... He denied having undergone any HIV examination since being tested in Kenya in January 1990. According to [X], the result of the HIV test was negative ... [He] cannot therefore be considered to have known with certainty that he was infected with HIV prior to receiving the results of the test on 19 March 1992.

[X] and [the applicant - mentioned by her first names and family name] got married on 12 April 1990. On 31 August 1990 [the applicant] was found to be an HIV carrier. When she gave evidence before the City Court, [she] said that she had informed X of this finding at the end of 1990. In the Court of Appeal, X said that the applicant had already informed him about her disease before he came to Finland in January 1991. [He] also said that while they were both living in Africa [the applicant] had been suffering from some undefined disease. [She] had then also suspected that she might have become contaminated with HIV but her infection had only been discovered after [she] had returned to Finland.

On the basis of the above statements by the spouses ... it must be considered established that, given the status of [X's] wife as an HIV carrier, [X] had particular reason to suspect that the infection had been transmitted through their sexual intercourse.

According to [Dr J.S.], a witness before the City Court, [X] must, on the basis of the symptoms of his disease, be considered to have been infected with HIV at least a year before the blood test performed in March 1992 ... According to [Dr S.V.], the disease with symptoms of fever which, according to [the applicant's] medical records, she is reported to have suffered from in January 1990 and which was treated as malaria is quite likely to have been a primary HIV infection. Regard being had to the fact that, when she contracted [her] disease with symptoms of fever at the end of 1989 or the beginning of 1990, [the applicant] was staying in Mombasa, where she had also met [X], the Court of Appeal finds DrS.V.'s opinion concerning the primary HIV infection credible. Taking into account the moment when [the applicant] was found to be an HIV carrier, the Court of Appeal finds it likely that she contracted the [disease] from [X].

On these grounds the Court of Appeal considers that [X] must have been aware of his HIV infection at the latest by December 1991. The fact that [he] nevertheless chose not to undergo any HIV examinations other than those referred to above shows that his attitude towards the possibility that others might be contaminated [with HIV] was at best indifferent. Such an attitude must, as regards the question of intent, be considered in the same way as if the perpetrator had known with certainty that he had the disease. When assessing [X's] intent, his conduct must therefore be viewed in the same way on all the counts of attempted manslaughter with which he has been charged.

...

It has been shown in this case that, on the basis of current knowledge, an HIV infection is lethal. [X] has admitted that, before arriving in Finland, he had already become familiar with the nature of [this] disease and the ways in which it could spread. Having regard also to [his] statement that he had [previously] stayed in Uganda, Kenya and Rwanda, Uganda being a country where the disease is particularly widespread, and the general knowledge that [the disease] is lethal, and [noting] that [X's] wife has also fallen ill [with this disease], [the Court of Appeal] finds it likely that [X] was familiar with the significant risk of contamination and the lethal effects of [the disease].

According to [senior doctor L.] and [Dr S.V.], who were called as witnesses, the disease may spread through a single act of sexual intercourse ... X must thus have realised that his acts entailed, as a probable consequence, subjecting [the complainants] to a risk that they would be contaminated with HIV. Given that he has nevertheless acted in the manner

established, his acts must be considered intentional. In this respect the Court of Appeal has also taken into account that [X] did not inform the complainants of the possible risk of contamination.

...

... [X] must therefore be considered to have committed attempted manslaughter ... on 19 December 1991 and 6September 1992 also ..."

The Court of Appeal in addition upheld the City Court's decision that the case documents should remain confidential for a period of ten years.

37. On 26 September 1994 the Supreme Court (korkein oikeus, högsta domstolen) refused to grant X leave to appeal.

F. Application to the Supreme Court for an order quashing or reversing the Court of Appeal's judgment

38. On 19 May 1995 the applicant applied to the Supreme Court for an order quashing (poistaa, undanröja) the Court of Appeal's judgment in so far as it permitted the information and material about her to become available to the public as from 2002. In her view, the Court of Appeal's failure to hear her submissions before deciding whether and for how long the relevant medical records should be kept confidential amounted to a procedural error. That part of its judgment had been prejudicial to her.

In the alternative, she applied for an order reversing (purkaa, återbryta) the Court of Appeal's judgment, on the grounds that it had manifestly been based on an incorrect application of the law and was incompatible with Article 8 of the Convention in that it was neither "in accordance with the law" nor "necessary in a democratic society".

In the event that the Court of Appeal's judgment be quashed or reversed, the applicant requested that the matter be referred back to the Court of Appeal, so that she could make submissions.

39. On 22 May 1995 the applicant requested the Helsinki Police Department to investigate who had informed the police that she was HIV positive (see paragraph 12 above). She withdrew her request the following month.

40. On 1 September 1995 the Supreme Court dismissed the applicant's application for an order quashing or reversing the Court of Appeal's judgment. The first application had been lodged out of time and she did not have locus standito make the second.

G. Press coverage of the case

41. On 15 June 1992 the large-circulation evening newspaper Ilta-Sanomat reported X's trial, stating that he was infected with HIV and that it was not yet certain whether the applicant was also infected, as she had refused to give evidence.

42. On 9 April 1993 the leading daily Helsingin Sanomat reported the seizure of the applicant's medical records under the headline "The Prosecutor obtains medical records of wife of man accused of HIV rapes". The article stated that the wife of X, whose first name and family name were mentioned in full, was a patient in a hospital unit treating patients suffering from HIV infection.

43. The Court of Appeal's judgment of 10 December 1993 was reported by various newspapers, including Helsingin Sanomat which, after receiving it by fax from the Court of Appeal, published an article on 16 December 1993. The article stated that the conviction had been based on the statement of "[X]'s Finnish wife", while mentioning his name in full; in addition, it referred to the Court of Appeal's finding that the applicant was HIV positive.

II. Relevant domestic law

A. Obligation to report contagious diseases and confidentiality of medical records

44. Under the Contagious Diseases Act 1986 and implementing decree (tartuntatautilaki 583/86 ja -asetus 786/86, lag 583/86 och förordning 786/86 om smittsamma sjukdomar), a person who is suffering from a disease such as infection with HIV or who it is found might have contracted such a disease must, on request, inform his or her doctor of the likely source of contamination (section 22 (2) of the Act and section 2 of the decree).

45. Under the Patients' Status and Rights Act 1992 (laki potilaan asemasta ja oikeuksista, lag om patientens st llning och r ttigheter 785/92) which entered into force on 1 May 1993, medical records must be kept confidential. Information may only be disclosed to a third party with the patient's written consent. It may nevertheless be disclosed to, among others, a court of law, another authority or an association which has been granted access thereto by law (section 13).

B. A medical doctor's rights and obligations with respect to confidentiality when giving evidence

46. Under chapter 17, Article 23 1 (3), of the Code of Judicial Procedure, a doctor of medicine may not, without his or her patient's consent, give information as a witness which he or she has obtained in his or her professional capacity and which, because of its nature, should be kept confidential.

However, paragraph 3 provides that a doctor may be ordered to give evidence as a witness in connection with a charge relating to an offence for which at least six years' imprisonment is prescribed (as is the case with regard to manslaughter and attempted manslaughter).

In such cases, section 27 (2) of the Pre-trial Investigation Act 1987 (esitutkintalaki, förundersökningslag 449/87) entitles doctors to give evidence even during the pre-trial investigation.

47. Section 28 (1) of that Act provides:

"If a witness manifestly has knowledge about a matter of importance to the clarification of [a suspect's] guilt and if he [or she] refuses to reveal this even though obliged to do so or, under section 27 (2), entitled to do so, the court may, at the request of the Chief Investigating Officer, require [the witness] to disclose his knowledge about the matter. In such cases all or part of the questioning of the witness may take place in court."

A party to the pre-trial investigation and his counsel may attend the proceedings in which such a request by the Chief Investigating Officer is considered and the actual hearing where the witness gives evidence (section 28 (2)).

C. Seizure of confidential documents

48. Chapter 4, section 2 (2), of the Coercive Means of Criminal Investigation Act 1987 (pakkokinolaki, tvångsmedelslagen 450/87) provides:

"A document shall not be seized for evidential purposes, if it may be presumed to contain information in regard to which a person referred to in chapter 17, Article 23, of the Code of Judicial Procedure is not allowed to give evidence at a trial ..., and [provided that] the document is in the possession of that person or the person for whose benefit the secrecy obligation has been prescribed. A document may nevertheless be seized if, under section 27 (2) of the Pre-trial Investigation Act, a person [referred to in chapter 17, Article 23, of the Code of Judicial Procedure] would have been entitled or obliged to give evidence in the pre-trial investigation about the matter contained in the document."

49. Chapter 4, section 13, of the Act reads:

"At the request of a person whom the case concerned, the court shall decide whether the seizure shall remain in force. A request which has been submitted to the court before its examination of the charges shall be considered within a week from its reception by the court. The examination of such a request is, in as far as appropriate, governed by the provisions in chapter 1, sections 9 and 12, on the examination of requests for detention on remand. The court shall reserve those with an interest in the matter an opportunity to be heard, but the absence of anyone shall not preclude a decision on the issue."

D. Access by the public to official documents

50. Under the Publicity of Official Documents Act 1951 (laki yleisten asiakirjain julkisuudesta, lag om allm nna handlingars offentlighet 83/51), official documents are in principle public (section 1). They include not only documents drawn up and issued by an authority but also documents submitted to an authority and which are in its possession (section 2 (1)). A pre-trial investigation record, however, shall not be public until the matter has been brought before a court or the police investigation has been closed without charges being brought (section 4).

Everyone has access to official public documents (section 6, as amended by Act no. 739/88). However, medical reports are accessible to the public only with the consent of the person to whom they relate (section 17). In the absence of such consent, a party to criminal proceedings shall nevertheless have access to such documents if they are capable of affecting the outcome of the case (section 19 (1), as amended by Act no. 601/82).

51. Documentary evidence obtained during a pre-trial investigation shall be kept in a record of investigation, if this is considered necessary for the further consideration of the case. The record shall include all documents assumed to be of importance and indicate, inter alia, whether other documentary evidence has been obtained but omitted from the record (section 40 of the Pre-trial Investigation Act).

52. If all or part of an oral hearing has been held in camera or if, during such a hearing, any confidential document or information has been submitted, the court may decide that all or part of the case material be kept confidential for up to forty years. The operative part of the judgment and the legal provisions relied on shall always be made public (section 9 of the Publicity of Court Proceedings Act1984 (laki oikeudenk ynnin julkisuudesta, lag om offentlighet vid r ttegång 945/84)).

No separate appeal against a decision concerning the publicity of proceedings is allowed (section 11). The decision must thus be challenged in an ordinary appeal lodged by a party to the proceedings.

E. Disclosure of confidential information

53. Under the 1889 Penal Code (rikoslaki, strafflag 39/1889), the disclosure of confidential information by a civil servant or a public employee is a criminal offence (chapter 40, which has been amended subsequently).

54. Under the Constitution (Suomen hallitusmuoto, Regeringsform för Finland 94/19), anyone whose rights have been infringed and who has suffered damage as a result of an illegal act, or by the negligence, of a civil servant, is entitled to prosecute the civil servant, or to demand that he or she be prosecuted, and to claim damages (section93(2)). Under the Damage Compensation Act 1974 (vahingonkorvauslaki, skadeståndslag 412/74) proceedings may also be brought against the State for actions taken by civil servants (chapters3 and 4).

55. A person involved in a pre-trial investigation may be prohibited, on pain of a fine or a maximum of six months' imprisonment, from revealing information concerning third parties which was not previously known to him or her and which relates to the investigation. Such a prohibition may be imposed if the disclosure of such information in the course of the investigation is liable to jeopardise the investigation or to cause harm or be prejudicial to a party to the investigation or to any third party. Heavier sentences may be imposed if the disclosure constitutes a separate offence (section 48 of the Pre-trial Investigation Act).

56. Under the Publicity of Official Documents Act 1951, neither parties nor their representatives are allowed to disclose confidential material, which has been made available to them in their capacity as parties, to persons not involved in the proceedings (section 19a). Disclosure in breach of this rule is punishable by a fine (section 27).

 

PROCEEDINGS BEFORE THE COMMISSION

57. In her application to the Commission of 21 May 1993 (no.22009/93), Mrs Z complained that there had been violations of her right to respect for private and family life as guaranteed by Article8 of the Convention on account, in particular, of (1) the orders imposed on her doctors and psychiatrist to give evidence and disclose information about her in the criminal proceedings against her husband;

(2) the seizure of her medical records at the hospital where she had been treated and their inclusion in their entirety in the investigation file; (3) the decisions of the competent courts to limit the confidentiality of the trial record to a period of ten years; and (4)the disclosure of her identity and medical data in the Court of Appeal's judgment. She also alleged that, contrary to Article 13 of the Convention, she had not been afforded an effective remedy with respect to her complaints under Article 8.

On 28 February 1995 the Commission declared the application admissible. In its report of 2 December 1995 (Article31), it expressed the unanimous opinion that there had been a violation of Article 8 and that it was not necessary to examine whether there had also been a violation of Article 13. The full text of the Commission's opinion is reproduced as an annex to this judgment[fn3] .

FINAL SUBMISSIONS TO THE COURT

58. At the hearing on 29 August 1996 the Government, as they had done in their memorial, invited the Court to hold that there had been no violation of the Convention.

59. On the same occasion the applicant reiterated her request to the Court, stated in her memorial, to find that there had been violations of both Article 8 and Article 13 and to award her just satisfaction under Article 50 of the Convention.

AS TO THE LAW

I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION

60. The applicant alleged that she had been a victim of violations of Article 8 of the Convention, which provides:

"1.Everyone has the right to respect for his private and family life, his home and his correspondence.

2.There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others."

61. The Government contested this allegation, whereas the Commission concluded that there had been a violation of this provision.

A. Scope of the issues before the Court

1. Allegation of leak of medical data

62. In her application to the Commission the applicant complained, amongst other things, about the failure of the Finnish authorities to prevent the disclosure by the press of her identity and her medical condition as an HIV carrier and the termination of her employment contract. After the Commissions's decision declaring the application admissible and in the light of new information obtained in the course of the proceedings before it, she elaborated on those allegations, maintaining that the information in question had been leaked by the police or other public authority.

In her memorial to the Court, the applicant sought to clarify these allegations. She had not intended to complain about the newspaper coverage or her dismissal, but only about the alleged leak, for which the respondent State was responsible. This fact on its own gave rise, in her view, to a violation of Article 8.

63. The Government, referring to the above clarification, considered the claim to be devoid of any real content.

64. The Commission did not find it necessary to examine the matter on the merits and the Delegate added at the Court's hearing that the evidence adduced was incomplete on this point.

65. Nor does the Court find it established that there had been a leak of confidential medical data concerning the applicant for which the respondent State could be held responsible under Article 8.

2. Allegation of discrimination

66. The applicant also complained before the Court that the reasoning in the Court of Appeal's judgment was biased, not only against her former husband on the grounds of race, but also against her on the grounds of sex. The interference with her right to respect for private and family life had been motivated by the fact that she had been a woman married to a black person from Africa.

67. The Government disputed the above contentions. The applicant had not referred to Article 14 of the Convention in the proceedings before the Commission, which had not examined any such allegations. She should be considered barred from pursuing any such claim before the Court.

68. The Delegate of the Commission did not express any views on the matter.

69. In the Court's view, the applicant's allegation that she was subjected to discriminatory treatment does not appear to be an elaboration of her complaints declared admissible by the Commission; it seems rather to be a separate and new complaint which is not covered by the Commission's decision on admissibility. The Court has therefore no jurisdiction to entertain it (see, for instance, the Olsson v. Sweden (no. 2) judgment of 27November 1992, Series A no.250, pp.30-31, 75; and the Schuler-Zgraggen v. Switzerland judgment of 24 June 1993, Series A no. 263, p. 20, 60).

3. Conclusion

70. The Court will therefore confine its examination to the other matters complained of by the applicant, namely (1) the orders requiring her doctors to give evidence in the criminal proceedings against her husband, (2) the seizure of her medical records and their inclusion in the investigation file, (3) the decision to make the material in question accessible to the public as from the year 2002 and (4) the disclosure of her identity and medical condition in the Court of Appeal's judgment.

B. Was there an interference with the applicant's right to respect for her private and family life?

71. It was undisputed that the various measures complained of constituted interferences with the applicant's right to respect for her private and family life as guaranteed by paragraph 1 of Article 8 of the Convention. The Court sees no reason to hold otherwise. It must therefore examine whether they fulfilled the conditions in paragraph2 of that Article.

C. Were the interferences justified?

1. "In accordance with the law"

72. The applicant complained that the four contested measures all stemmed from the fact that her medical data had been communicated in the proceedings against X in application of chapter 17, Article 23§3, of the Code of Judicial Procedure (see paragraph 46 above), which provision was in her view couched in "dangerously" broad terms. She submitted that that provision failed to specify the group of persons whose medical information could be used in criminal proceedings. Nor did the relevant law afford a right for the persons concerned to be heard prior to the taking of such measures or a remedy to challenge these. The seizure of medical records and their inclusion in an investigation file did not even require a court order. Thus the legislation could not be said to fulfil the requirements of precision and foreseeability flowing from the expression "in accordance with the law".

73. The Court, however, sharing the views of the Commission and the Government, finds nothing to suggest that the measures did not comply with domestic law or that the effects of the relevant law were not sufficiently foreseeable for the purposes of the quality requirement which is implied by the expression "in accordance with the law" in paragraph 2 of Article 8.

2. Legitimate aim

74. The applicant maintained that the medical data in question had not been of such importance in the trial against X as to suggest that the impugned measures had pursued a legitimate aim for the purposes of paragraph 2 of Article8.

75. However, the Court is not persuaded by this argument which is essentially based on an ex post factoassessment by the applicant of the importance of the evidence concerned for the outcome of the proceedings against X. What matters is whether, at the time when the contested measures were taken, the relevant authorities sought to achieve a legitimate aim.

76. In this respect the Court agrees with the Government and the Commission that, at the material time, the investigative measures in issue (see paragraphs 23, 26 and 29-32 above) were aimed at the "prevention of ... crime" and the "protection of the rights and freedoms of others".

77. As regards the ten-year limitation on the confidentiality order, the Court recognises that there is a public interest in ensuring the transparence of court proceedings and thereby the maintenance of the public's confidence in the courts (see paragraphs 33, 35 and 36 above). The limitation in question would, under Finnish law, enable any member of the public to exercise his or her right to have access to the case material after the expiry of the confidentiality order. It could therefore, as suggested by the Government and the Commission, be said to have been aimed at protecting the "rights and freedoms of others".

On the other hand, unlike the Government and the Commission, the Court does not consider that it could be regarded as being aimed at the prevention of crime.

78. As to the publication of the applicant's full name as well as her medical condition following their disclosure in the Court of Appeal's judgment (see paragraph 36 above), the Court, unlike the Government and the Commission, has doubts as to whether this could be said to have pursued any of the legitimate aims enumerated in paragraph2 of Article8. However, in view of its findings in paragraph 113 below, the Court does not deem it necessary to decide this issue.

3. "Necessary in a democratic society"

(a) Arguments of those appearing before the Court

(i) The applicant and the Commission

79. The applicant and the Commission were of the view that her right to respect for her private and family life under Article 8 had been interfered with in a manner which could not be said to have been "necessary in a democratic society".

However, their conclusions on this point differed. Whereas the applicant alleged that each measure on its own constituted a violation of Article 8, the Commission found a violation by considering them globally. The Delegate explained that, because of the strong links between the various measures and their consequences for the applicant, an overall assessment provided a better basis for the balancing of interests to be exercised under the necessity test.

There were also certain differences between their respective arguments. They could be summarised in the following way.

80. In the applicant's submission, there was no reasonable relationship of proportionality between any legitimate aim pursued by the measures in question and her interest in maintaining the confidentiality of her identity and her medical condition.

As regards the orders requiring her doctors and psychiatrist to give evidence, she observed that the conviction of X on five, as opposed to three, counts of attempted manslaughter had hardly affected the severity of the sentence and the possibility for the victims of obtaining damages from him. He would in any event have been sentenced for sexual offences in relation to the two remaining counts. In view of the obligation of an HIV carrier under Finnish law to inform his or her doctor of the likely source of the disease (see paragraph 44 above), the contested orders were likely to have deterred potential and actual HIV carriers in Finland from undergoing blood tests and from seeking medical assistance.

As to the seizure of the medical records and their inclusion in the investigation file (see paragraphs 31-32 above), a substantial part of this material had clearly been irrelevant to the case against X and none of it had contained any information which could have been decisive for determining when X had become aware of his HIV infection. There were certain isolated annotations in the records of statements by Z concerning X, but their importance was only theoretical. The City Court was under no obligation to admit the filing of all of the evidence derived from the seizure.

Against this background, there could be no justification for the decision to make the trial record accessible to the public as early as ten years later, in the year 2002.

Nor had it been "necessary" for the Court of Appeal to disclose her identity and details of her medical condition in its judgment and to fax this to Finland's largest newspaper (see paragraph 43 above), which measure had been particularly damaging to her private and professional life. At the Court of Appeal's hearing, X's lawyer had made it entirely clear that Z did not wish any information about her to be published.

81. Unlike the applicant, the Commission was satisfied that the measures in issue were justified on their merits in so far as the competent national authorities had merely sought to obtain evidence on when X had become aware of his HIV infection. It had regard to the weighty public and private interests in pursuing the investigation of the offences of attempted manslaughter.

On the other hand, the Commission, like the applicant, was of the opinion that the measures in question had not been accompanied by sufficient safeguards for the purposes of paragraph 2 of Article 8.

82. In the first place, the Commission observed that the applicant had been given no prior warning of the first order to senior doctor L. to give evidence (see paragraph23 above), nor of the fact that her medical records were to be seized and that copies thereof were to be included in the investigation file (see paragraphs 31-32 above). As she had not been properly informed of the various investigatory measures in advance, she had not been able to object to them effectively. Also, in this connection, the applicant pointed out that, not being a party to the proceedings and the court hearings being held in camera (see paragraph 23 above), she had had no means of appearing before the court to state her views.

It was not clear why it had been necessary to hear all the doctors (see paragraphs 23, 26, 29 and 30 above) and what, if any, efforts had been made to limit the questioning in such a way as to minimise the interference complained of.

83. Moreover, there was no indication that the police had exercised their discretion to protect at least some of the information emanating from the applicant's medical records, notably by excluding certain material from the investigation file.

On this point, the applicant also contended that she had not been afforded a remedy to challenge the seizure of the records or their inclusion in the file.

84. Furthermore, whilst it was possible under Finnish law to keep court records confidential for up to forty years (see paragraph 52 above) and all the parties to the proceedings had requested thirty years, the City Court had decided to limit the order to ten years (see paragraph 33 above), which decision had been upheld by the Court of Appeal (see paragraph 36 above).

Any possibility which the applicant might have had to ask the Supreme Court to quash the confidentiality order would not have provided her with an adequate safeguard. There was no provision entitling her to be heard by the Court of Appeal and all the parties who had been heard on the matter had unsuccessfully asked for an extension of the order (see paragraph 36 above).

85. In addition, the Court of Appeal, by having the reasoning of its judgment published in full, had disclosed the applicant's identity and her HIV infection (see paragraph 36 above). She had had no effective means of opposing or challenging this measure.

(ii) The Government

86. The Government contested the conclusions reached by the applicant and the Commission. In the Government's opinion, the various measures complained of were all supported by relevant and sufficient reasons and, having regard to the safeguards which existed, were proportionate to the legitimate aims pursued. They invited the Court to examine each of the measures separately.

87. In the Government's submission, both the taking of evidence from the applicant's doctors and psychiatrist and the production of her medical records at the trial had been vital in securing X's conviction and sentence on two of the five counts of attempted manslaughter (see paragraphs 33 and 36 above). The purpose of these measures had been confined to seeking information on when X had become aware of his HIV infection or had reason to suspect that he was carrying the disease.

88. They further maintained that it had been necessary to hear all the doctors because of the nature of the information sought, the seriousness of the offences in question and what was at stake for the accused.

The orders requiring the doctors and the psychiatrist to give evidence had been taken by the City Court and the applicant's objections thereto had been drawn to its attention on 3 March 1993, when senior doctor L. had read out her letter to the court (see paragraph 29 above).

89. Moreover, the Government argued that since all the records had had a potential relevance to the question as to when X had become aware of or had reason to suspect his HIV infection, it had been reasonable that the material in its entirety be seized and included in the investigation file. Having regard to the variety of symptoms of an HIV infection and the difficulty of judging whether an illness had been HIV related, it had been essential that the competent courts be able to examine all the material. To exclude any of it would have given rise to doubts as to its reliability.

In addition, the Government pointed out that the applicant could have challenged the seizure under section 13 of chapter 4 of the Coercive Means of Criminal Investigation Act 1987 (see paragraph 49 above).

90. Bearing in mind the public interest in publicity of court proceedings, the Government considered it reasonable in the circumstances of the case to limit the confidentiality order to ten years. When heard as a witness, Mrs Z had not expressly requested that her medical data remain confidential and that she should not be identified in the Court of Appeal's judgment.

91. The reference to the applicant as X's wife in the Court of Appeal's judgment had been an indispensable element of its reasoning and conclusion (see paragraph 36 above). The fact that the judgment had disclosed her name had been of no significance to her interests. As with the victims of the offences committed by X, it would have been possible to omit mentioning her name, had she expressed any wish to this effect.

92. Finally, in addition to the above safeguards, the Government pointed to the civil and criminal remedies for breach of confidentiality by civil servants which had been available to the applicant under Finnish law and to the possibility of lodging a petition with the Parliamentary Ombudsman or with the Chancellor of Justice (see paragraphs 53-56 above).

93. In the light of the foregoing, the Government were of the view that the Finnish authorities had acted within the margin of appreciation left to them in the matters in issue and that, accordingly, none of the contested measures had given rise to a violation of Article 8 of the Convention.

(b) The Court's assessment

94. In determining whether the impugned measures were "necessary in a democratic society", the Court will consider whether, in the light of the case as a whole, the reasons adduced to justify them were relevant and sufficient and whether the measures were proportionate to the legitimate aims pursued.

95. In this connection, the Court will take into account that the protection of personal data, not least medical data, is of fundamental importance to a person's enjoyment of his or her right to respect for private and family life as guaranteed by Article 8 of the Convention. Respecting the confidentiality of health data is a vital principle in the legal systems of all the Contracting Parties to the Convention. It is crucial not only to respect the sense of privacy of a patient but also to preserve his or her confidence in the medical profession and in the health services in general.

Without such protection, those in need of medical assistance may be deterred from revealing such information of a personal and intimate nature as may be necessary in order to receive appropriate treatment and, even, from seeking such assistance, thereby endangering their own health and, in the case of transmissible diseases, that of the community (see Recommendation no. R (89) 14 on "The ethical issues of HIV infection in the health care and social settings", adopted by the Committee of Ministers of the Council of Europe on 24 October 1989, in particular the general observations on confidentiality of medical data in paragraph 165 of the explanatory memorandum).

The domestic law must therefore afford appropriate safeguards to prevent any such communication or disclosure of personal health data as may be inconsistent with the guarantees in Article 8 of the Convention (see, mutatis mutandis, Articles 3 2 (c), 5, 6 and 9 of the Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data, European Treaty Series no.108, Strasbourg, 1981).

96. The above considerations are especially valid as regards protection of the confidentiality of information about a person's HIV infection. The disclosure of such data may dramatically affect his or her private and family life, as well as social and employment situation, by exposing him or her to opprobrium and the risk of ostracism. For this reason it may also discourage persons from seeking diagnosis or treatment and thus undermine any preventive efforts by the community to contain the pandemic (see the above-mentioned explanatory memorandum to Recommendation no. R (89) 14, paragraphs 166-68). The interests in protecting the confidentiality of such information will therefore weigh heavily in the balance in determining whether the interference was proportionate to the legitimate aim pursued. Such interference cannot be compatible with Article 8 of the Convention unless it is justified by an overriding requirement in the public interest.

In view of the highly intimate and sensitive nature of information concerning a person's HIV status, any State measures compelling communication or disclosure of such information without the consent of the patient call for the most careful scrutiny on the part of the Court, as do the safeguards designed to secure an effective protection (see, mutatis mutandis, the Dudgeon v. the United Kingdom judgment of 22 October 1981, Series A no. 45, p. 21, 52; and the Johansen v. Norway judgment of 7 August 1996, Reports of Judgments and Decisions 1996-III, pp. 1003-04, 64).

97. At the same time, the Court accepts that the interests of a patient and the community as a whole in protecting the confidentiality of medical data may be outweighed by the interest in investigation and prosecution of crime and in the publicity of court proceedings (see, mutatis mutandis, Article 9 of the above-mentioned 1981 Data Protection Convention), where such interests are shown to be of even greater importance.

98. It must be borne in mind in the context of the investigative measures in issue that it is not for the Court to substitute its views for those of the national authorities as to the relevance of evidence used in the judicial proceedings (see, for instance, the above-mentioned Johansen judgment, pp. 1006-07, 73).

99. As to the issues regarding access by the public to personal data, the Court recognises that a margin of appreciation should be left to the competent national authorities in striking a fair balance between the interest of publicity of court proceedings, on the one hand, and the interests of a party or a third person in maintaining the confidentiality of such data, on the other hand. The scope of this margin will depend on such factors as the nature and seriousness of the interests at stake and the gravity of the interference (see, for instance, the Leander v.Sweden judgment of 26 March 1987, Series A no.116, p. 25, 58; and, mutatis mutandis, the Manoussakis and Others v. Greece judgment of 26September 1996, Reports 1996-IV, 44).

100. It is in the light of the above considerations that the Court will examine the contested interferences with the applicant's right to respect for her private and family life.

Since the various measures were different in character, pursued distinct aims and infringed upon her private and family life to a different extent, the Court will examine the necessity of each measure in turn.

101. Before broaching these issues, the Court observes at the outset that, although the applicant may not have had an opportunity to be heard directly by the competent authorities before they took the measures, they had been made aware of her views and interests in these matters.

All her medical advisers had objected to the various orders to testify and had thus actively sought to protect her interests in maintaining the confidentiality of her medical data. At an early stage, her letter to senior doctor L., urging him not to testify and stating her reasons, had been read out to the City Court (see paragraphs 23, 26, 29 and 30 above).

In the above-mentioned letter, it was implicit, to say the least, that she would for the same reasons object also to the communication of her medical data by means of seizure of her medical records and their inclusion in the investigation file, which occurred a few days later (see paragraphs 31 and 32 above). According to the applicant, her lawyer had done all he could to draw the public prosecutor's attention to her objections to her medical data being used in the proceedings.

Moreover, before upholding the ten-year limitation on the confidentiality order, the Court of Appeal had been informed by X's lawyer of the applicant's wish that the period of confidentiality be extended (see paragraph 35 above).

In these circumstances, the Court is satisfied that the decision-making process leading to the measures in question was such as to take her views sufficiently into account for the purposes of Article 8 of the Convention (see, mutatis mutandis, the W. v. the United Kingdom judgment of 8 July 1987, Series A no. 121, pp. 28-29, 62-64; and the above-mentioned Johansen judgment, pp. 1004-05,§66). Thus, the procedure followed did not as such give rise to any breach of that Article.

In this connection, the Court takes note of the fact that, according to the Government's submissions to the Court, it would have been possible for the applicant to challenge the seizure before the City Court (see paragraph49 above). Also, as is apparent from the Supreme Court's decision of 1 September 1995, she was able under Finnish law to apply - by way of an extraordinary procedure - for an order quashing the Court of Appeal's judgment in so far as it permitted the information and material about her to be made accessible to the public as from 2002 (see paragraph 40 above).

(i) The orders requiring the applicant's doctors and psychiatrist to give evidence

102. As regards the orders requiring the applicant's doctors and psychiatrist to give evidence, the Court notes that the measures were taken in the context of Z availing herself of her right under Finnish law not to give evidence against her husband (see paragraphs 14, 17 and21 above). The object was exclusively to ascertain from her medical advisers when X had become aware of or had reason to suspect his HIV infection. Their evidence had the possibility of being at the material time decisive for the question whether X was guilty of sexual offences only or in addition of the more serious offence of attempted manslaughter in relation to two offences committed prior to 19March 1992, when the positive results of the HIV test had become available. There can be no doubt that the competent national authorities were entitled to think that very weighty public interests militated in favour of the investigation and prosecution of X for attempted manslaughter in respect of all of the five offences concerned and not just three of them.

103. The Court further notes that, under the relevant Finnish law, the applicant's medical advisers could be ordered to give evidence concerning her without her informed consent only in very limited circumstances, namely in connection with the investigation and the bringing of charges for serious criminal offences for which at least six years' imprisonment was prescribed (see paragraph 46 above). Since they had refused to give evidence to the police, the latter had to obtain authorisation from a judicial body - the City Court - to hear them as witnesses (see paragraph 28 above). The questioning took place in camera before the City Court, which had ordered in advance that its file, including transcripts of witness statements, be kept confidential (see paragraphs 19 and 23 above). All those involved in the proceedings were under a duty to treat the information as confidential. Breach of their duty in this respect could lead to civil and/or criminal liability under Finnish law (see paragraphs 53-56 above).

The interference with the applicant's private and family life which the contested orders entailed was thus subjected to important limitations and was accompanied by effective and adequate safeguards against abuse (see, for instance, the Klass and Others v. Germany judgment of 6September 1978, Series A no. 28, pp. 23-24, 49-50; and the Leander judgment cited above, p. 25, 60).

In this connection, the Court sees no reason to question the extent to which the applicant's doctors were ordered to give evidence (see paragraphs 23, 26 and 30 above). As indicated above, the expediency of obtaining evidence is primarily a matter for the national authorities and it is not for the Court to substitute its views for theirs in this regard (see paragraph 98 above).

104. In view of the above factors, in particular the confidential nature of the proceedings against X, as well as their highly exceptional character, the Court is not persuaded by the applicant's argument that the various orders to give evidence were likely to have deterred potential and actual HIV carriers in Finland from undergoing blood tests and from seeking medical treatment.

105. In the light of the foregoing, the Court finds that the various orders requiring the applicant's medical advisers to give evidence were supported by relevant and sufficient reasons which corresponded to an overriding requirement in the interest of the legitimate aims pursued. It is also satisfied that there was a reasonable relationship of proportionality between those measures and aims. Accordingly, there has been no violation of Article 8 on this point.

(ii) Seizure of the applicant's medical records and their inclusion in the investigation file

106. The seizure of the applicant's medical records and their inclusion in the investigation file were complementary to the orders compelling the medical advisers to give evidence. Like the latter measures, the former were taken in the context of the applicant refusing to give evidence against her husband and their object was to ascertain when X had become aware of his HIV infection or had reason to suspect that he was carrying the disease. They were based on the same weighty public interests (see paragraph 102 above).

107. Furthermore, they were subject to similar limitations and safeguards against abuse (see paragraph 103 above). The substantive conditions on which the material in question could be seized were equally restrictive (see paragraphs 46 and 48 above). More importantly, the material had been submitted in the context of proceedings held in camera, and the City Court had decided that the case documents should be treated as confidential, which measure was protected largely by the same rules and remedies as the witness statements (see paragraphs 23 and 53-56 above).

108. It is true, however, that the seizure, unlike the taking of evidence from the doctors and psychiatrist, had not been authorised by a court but had been ordered by the prosecution (see paragraph 31 above).

Nevertheless, under the terms of the relevant provision in chapter 4, section 2 (2), of the Coercive Means of Criminal Investigation Act, a condition for the seizure of the medical records concerned was that the applicant's doctors would be "entitled or obliged to give evidence in the pre-trial investigation about the matter contained in the document[s]"(see paragraph 48 above). The legal conditions for the seizure were thus essentially the same as those for the orders on the doctors to give evidence.

Furthermore, prior to the seizure of the documents, the City Court had already decided that at least two of the doctors should be heard, whilst it required all the other doctors to give evidence shortly afterwards (see paragraphs 23, 26 and 30 above). The day following the seizure, the City Court, which had power to exclude evidence, decided to include all the material in question in its case file (see paragraph 32 above). In addition, as already noted, the applicant had the possibility of challenging the seizure before the City Court (see paragraphs 49 and 101 above).

Therefore, the Court considers that the fact that the seizure was ordered by the prosecution and not by a court cannot of itself give rise to any misgivings under Article 8.

109. As to the applicant's submission that parts of the material had been irrelevant and that none of it had been decisive in the trial against X, the Court reiterates that the expediency of the adducing and admission of evidence by national authorities in domestic proceedings is primarily a matter to be assessed by them and that it is normally not within its province to substitute its views for theirs in this respect (see paragraph 98 above). Bearing in mind the arguments advanced by the Government as to the variety of data which could have been relevant for the determination of when X was first aware of or had reason to suspect his HIV infection (see paragraph 89 above), the Court sees no reason to doubt the assessment by the national authorities on this point.

110. Therefore, the Court considers that the seizure of the applicant's medical records and their inclusion in the investigation file were supported by relevant and sufficient reasons, the weight of which was such as to override the applicant's interest in the information in question not being communicated. It is satisfied that the measures were proportionate to the legitimate aims pursued and, accordingly, finds no violation of Article 8 on this point either.

(iii) Duration of the order to maintain the medical data confidential

111. As regards the complaint that the medical data in issue would become accessible to the public as from 2002, the Court notes that the ten-year limitation on the confidentiality order did not correspond to the wishes or interests of the litigants in the proceedings, all of whom had requested a longer period of confidentiality (see paragraph35 above).

112. The Court is not persuaded that, by prescribing a period of ten years, the domestic courts attached sufficient weight to the applicant's interests. It must be remembered that, as a result of the information in issue having been produced in the proceedings without her consent, she had already been subjected to a serious interference with her right to respect for private and family life. The further interference which she would suffer if the medical information were to be made accessible to the public after ten years is not supported by reasons which could be considered sufficient to override her interest in the data remaining confidential for a longer period. The order to make the material so accessible as early as 2002 would, if implemented, amount to a disproportionate interference with her right to respect for her private and family life, in violation of Article 8.

However, the Court will confine itself to the above conclusion, as it is for the State to choose the means to be used in its domestic legal system for discharging its obligations under Article53 of the Convention (see the Marckx v. Belgium judgment of 13 June 1979, Series A no. 31, pp. 25-26, 58).

(iv) Publication of the applicant's identity and health condition in the Court of Appeal's judgment

113. Finally, the Court must examine whether there were sufficient reasons to justify the disclosure of the applicant's identity and HIV infection in the text of the Court of Appeal's judgment made available to the press (see paragraphs 36 and 43 above).

Under the relevant Finnish law, the Court of Appeal had the discretion, firstly, to omit mentioning any names in the judgment permitting the identification of the applicant and, secondly, to keep the full reasoning confidential for a certain period and instead publish an abridged version of the reasoning, the operative part and an indication of the law which it had applied (see paragraph 52 above). In fact, it was along these lines that the City Court had published its judgment, without it giving rise to any adverse comment (see paragraph33 above).

Irrespective of whether the applicant had expressly requested the Court of Appeal to omit disclosing her identity and medical condition, that court was informed by X's lawyer about her wishes that the confidentiality order be extended beyond ten years (see paragraph35 above). It evidently followed from this that she would be opposed to the disclosure of the information in question to the public.

In these circumstances, and having regard to the considerations mentioned in paragraph 112 above, the Court does not find that the impugned publication was supported by any cogent reasons. Accordingly, the publication of the information concerned gave rise to a violation of the applicant's right to respect for her private and family life as guaranteed by Article 8.

(v) Recapitulation

114. The Court thus reaches the conclusions that there has been no violation of Article 8 of the Convention (1) with respect to the orders requiring the applicant's medical advisers to give evidence or (2) with regard to the seizure of her medical records and their inclusion in the investigation file.

On the other hand, it finds (3) that making the medical data concerned accessible to the public as early as 2002 would, if implemented, give rise to a violation of this Article and (4) that there has been a violation thereof with regard to the publication of the applicant's identity and medical condition in the Court of Appeal's judgment.

II. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION

115. The applicant also alleged that the lack of remedies to challenge each of the measures complained of under Article 8 gave rise to violations of Article 13 of the Convention, which reads:

"Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity."

116. The Government contested this view, whereas the Commission, having regard to its finding with regard to the complaints under Article 8, did not consider it necessary to examine whether there had also been a violation of Article 13.

117. The Court, having taken these matters into account in relation to Article 8 (see paragraphs 101, 103, 107 and 109 above), does not find it necessary to examine them under Article 13.

III. APPLICATION OF ARTICLE 50 OF THE CONVENTION

118. The applicant sought just satisfaction under Article50 of the Convention, which reads:

"If the Court finds that a decision or a measure taken by a legal authority or any other authority of a High Contracting Party is completely or partially in conflict with the obligations arising from the ... Convention, and if the internal law of the said Party allows only partial reparation to be made for the consequences of this decision or measure, the decision of the Court shall, if necessary, afford just satisfaction to the injured party."

A. Non-pecuniary damage

119. The applicant did not make any claim for pecuniary damage but requested the Court to award her 2 million Finnish marks (FIM) in compensation for non-pecuniary damage sustained as a result of the disclosure of her medical data, which had been widely disseminated by the press.

120. In the view of the Government the finding of a violation would in itself constitute adequate just satisfaction. In any event, an award to the applicant should not reach the level of the awards made in respect of the four victims of the offences committed by X, the highest of which had been FIM 70,000.

121. The Delegate of the Commission did not offer any comments on the matter.

122. The Court finds it established that the applicant must have suffered non-pecuniary damage as a result of the disclosure of her identity and medical condition in the Court of Appeal's judgment. It considers that sufficient just satisfaction would not be provided solely by the finding of a violation and that compensation has thus to be awarded. In assessing the amount, the Court does not consider itself bound by domestic practices, although it may derive some assistance from them. Deciding on an equitable basis, it awards the applicant FIM 100,000 under this head.

B. Costs and expenses

123. The applicant further requested the reimbursement of costs and expenses, totalling FIM 239,838, in respect of the following items:

(a)FIM 4,800 in fees for work by Mr Fredman in the domestic proceedings;

(b)by way of legal fees incurred before the Commission, FIM126,000 for Mr Fredman and FIM 24,000 for Mr Scheinin;

(c)for legal fees incurred before the Court up to and including the memorial, FIM 16,800 for Mr Fredman and FIM 9,600 for MrScheinin;

(d)FIM 49,800 for her lawyers' appearance before the Court;

(e)FIM 8,838 in translation expenses.

The above legal fees, which concerned 385 hours work at FIM 600 per hour, should be increased by the relevant value-added tax (VAT), whereas the amounts received in legal aid from the Council of Europe should be deducted.

124. Whilst accepting item (a) and expressing no objection to item(e), the Government regarded the number of hours in connection with items (b) to (d) as excessive.

125. The Delegate of the Commission did not state any views on the matter.

126. The Court will consider the above claims in the light of the criteria laid down in its case-law, namely whether the costs and expenses were actually and necessarily incurred in order to prevent or obtain redress for the matter found to constitute a violation of the Convention and were reasonable as to quantum (see, for instance, the Tolstoy Miloslavsky v. the United Kingdom judgment of 13July 1995, Series A no. 316-B, p. 83, 77).

Applying these criteria, the Court considers that items (a) and(e) should be reimbursed in their entirety.

As to items (b) to (d), the Court is not satisfied that all the costs were necessarily incurred.

Deciding on an equitable basis, it awards the total sum of FIM160,000, to be increased by any applicable VAT, less the 10,835French francs which the applicant has received in respect of legal fees by way of legal aid from the Council of Europe.

C. Default interest

127. According to the information available to the Court, the statutory rate of interest applicable in Finland at the date of the adoption of the present judgment is 11 % per annum.

FOR THESE REASONS, THE COURT

1. Holds by eight votes to one that the orders requiring the applicant's medical advisers to give evidence did not constitute a violation of Article 8 of the Convention;

2. Holds by eight votes to one that the seizure of the applicant's medical records and their inclusion in the investigation file did not give rise to a violation of Article8;

3. Holds unanimously that the order to make the transcripts of the evidence given by her medical advisers and her medical records accessible to the public in 2002 would, if implemented, constitute a violation of Article 8;

4. Holds unanimously that the disclosure of the applicant's identity and medical condition by the Helsinki Court of Appeal constituted a breach of Article 8;

5. Holds unanimously that it is not necessary to examine the applicant's complaints under Article 13 of the Convention;

6. Holds unanimously:

(a)that the respondent State is to pay to the applicant, within three months, 100,000 (one hundred thousand) Finnish marks in compensation for non-pecuniary damage, and, for legal costs and expenses, 160,000 (one hundred and sixty thousand) marks, plus any applicable VAT, less 10,835 (ten thousand, eight hundred and thirty-five) French francs to be converted into Finnish marks at the rate applicable on the date of delivery of the present judgment;

(b)that simple interest at an annual rate of 11 % shall be payable from the expiry of the above-mentioned three months until settlement;

7. Dismisses unanimously the remainder of the claim for just satisfaction.

Done in English and in French, and delivered at a public hearing in the Human Rights Building, Strasbourg, on 25 February 1997.

Rolv RYSSDAL

President

Herbert PETZOLD

Registrar

In accordance with Article 51 2 of the Convention and Rule55 2 of Rules of Court B, the partly dissenting opinion of MrDeMeyer is annexed to this judgment.

R. R.

H. P.

PARTLY DISSENTING OPINION OF JUDGE DE MEYER

(provisional translation)

I. The Court accepted that the applicant's right to respect for her private and family life was not infringed by either the orders requiring her doctors and her psychiatrist to give evidence or the seizure of her medical records and their inclusion in the investigation file.

It held that these measures were justified in order to determine when X, her husband, had learnt or had had reason to believe that he was HIV positive for the purpose of establishing whether the offences he was accused of having committed before 19 March 1992 should be classified as attempted manslaughter, like those he had committed after that date, or only as sexual assault.

In my opinion, whatever the requirements of criminal proceedings may be, considerations of that order do not justify disclosing confidential information arising out of the doctor/patient relationship or the documents relating to it.

II. By indicating that the ten-year "limitation on confidentiality" decided on by the Finnish courts in this case was too short, the Court appears to imply that public access to medical data might be permissible after a sufficient length of time has elapsed.

Without prejudice to what might be acceptable with regard to other information in criminal case files, I consider that medical data in such files must remain confidential indefinitely.

The interest in ensuring that court proceedings are public is not sufficient to justify disclosure of confidential data, even after many years have elapsed.

III. In the present judgment the Court once again relies on the national authorities' "margin of appreciation".

I believe that it is high time for the Court to banish that concept from its reasoning. It has already delayed too long in abandoning this hackneyed phrase and recanting the relativism it implies.

It is possible to envisage a margin of appreciation in certain domains. It is, for example, entirely natural for a criminal court to determine sentence - within the range of penalties laid down by the legislature - according to its assessment of the seriousness of the case.

But where human rights are concerned, there is no room for a margin of appreciation which would enable the States to decide what is acceptable and what is not.

On that subject the boundary not to be overstepped must be as clear and precise as possible. It is for the Court, not each State individually, to decide that issue, and the Court's views must apply to everyone within the jurisdiction of each State.

The empty phrases concerning the State's margin of appreciation- repeated in the Court's judgments for too long already- are unnecessary circumlocutions, serving only to indicate abstrusely that the States may do anything the Court does not consider incompatible with human rights.

Such terminology, as wrong in principle as it is pointless in practice, should be abandoned without delay.

Footnotes

[fn1]The case is numbered 9/1996/627/811. The first number is the case's position on the list of cases referred to the Court in the relevant year (second number). The last two numbers indicate the case's position on the list of cases referred to the Court since its creation and on the list of the corresponding originating applications to the Commission.

[fn2]Rules of Court B, which came into force on 2 October 1994, apply to all cases concerning the States bound by Protocol No. 9.

[fn3] Note by the Registrar. For practical reasons this annex will appear only with the printed version of the judgment (in Reports of Judgments and Decisions - 1997), but a copy of the Commission's report is obtainable from the registry. (Back to FN3)


 

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