EUROPEAN COMMISSION OF HUMAN RIGHTS

                   Application No. 20837/92

                             M.S.

                            against

                            Sweden

                   REPORT OF THE COMMISSION

                  (adopted on 11 April 1996)

                       TABLE OF CONTENTS

                                                          Page

I.   INTRODUCTION

     (paras. 1-15). . . . . . . . . . . . . . . . . . . . . .1

     A.   The application

          (paras. 2-4). . . . . . . . . . . . . . . . . . . .1

     B.   The proceedings

          (paras. 5-10) . . . . . . . . . . . . . . . . . . .1

     C.   The present Report

          (paras. 11-15). . . . . . . . . . . . . . . . . . .2

II.  ESTABLISHMENT OF THE FACTS

     (paras. 16-34) . . . . . . . . . . . . . . . . . . . . .3

     A.   The particular circumstances of the case

          (paras. 16-23). . . . . . . . . . . . . . . . . . .3

     B.   Relevant domestic law

          (paras. 24-34). . . . . . . . . . . . . . . . . . .4

III. OPINION OF THE COMMISSION

     (paras. 35-93) . . . . . . . . . . . . . . . . . . . . .7

     A.   Complaints declared admissible

          (para. 35). . . . . . . . . . . . . . . . . . . . .7

     B.   Points at issue

          (para. 36). . . . . . . . . . . . . . . . . . . . .7

     C.   As regards Article 8 of the Convention

          (paras. 37-63). . . . . . . . . . . . . . . . . . .7

          a.   Whether there was an interference with the

               applicant's rights under Article 8 para. 1

               (paras. 39-42) . . . . . . . . . . . . . . . .7

          b.   Whether the interference was in accordance

               with the law

               (paras. 43-49) . . . . . . . . . . . . . . . .8

          c.   Whether the interference pursued a legitimate aim

               (paras. 50-52) . . . . . . . . . . . . . . . 10

          d.   Whether the interference was necessary

               (paras. 53-62) . . . . . . . . . . . . . . . 10

          CONCLUSION

          (para. 63). . . . . . . . . . . . . . . . . . . . 12

     D.   As regards Article 6 of the Convention

          (paras. 64-87). . . . . . . . . . . . . . . . . . 12

          a.   Applicability of Article 6 para. 1

               (paras. 65-78) . . . . . . . . . . . . . . . 12

          b.   Compliance with Article 6 para. 1

               (paras. 79-86) . . . . . . . . . . . . . . . 14

          CONCLUSION

          (para. 87). . . . . . . . . . . . . . . . . . . . 15

     E.   As regards Article 13 of the Convention

          (paras. 88-90). . . . . . . . . . . . . . . . . . 15

          CONCLUSION

          (para. 90). . . . . . . . . . . . . . . . . . . . 16

     F.   Recapitulation

          (paras. 91-93). . . . . . . . . . . . . . . . . . 16

PARTLY CONCURRING AND PARTLY DISSENTING OPINION

OF MR. H. DANELIUS JOINED BY MM. C.A. NØRGAARD,

G. JÖRUNDSSON, M.P. PELLONPÄÄ AND B. MARXER . . . . . . . . 17

SEPARATE OPINION OF MR. S. TRECHSEL . . . . . . . . . . . . 19

DISSENTING OPINION OF MR. C.A. NØRGAARD,

MRS. G.H. THUNE, MM. J. MUCHA AND D. SVÁBY. . . . . . . . . 20

DISSENTING OPINION OF MRS. G.H. THUNE,

MM. J. MUCHA AND D. SVÁBY . . . . . . . . . . . . . . . . . 22

DISSENTING OPINION OF MR. N. BRATZA . . . . . . . . . . . . 24

APPENDIX: DECISION OF THE COMMISSION AS TO THE

          ADMISSIBILITY OF THE APPLICATION. . . . . . . . . 25

I.   INTRODUCTION

1.   The following is an outline of the case as submitted to the

European Commission of Human Rights, and of the procedure before the

Commission.

A.   The application

2.   The applicant is a Swedish citizen, born in 1951 and resident in

Sweden. She is represented before the Commission by Ms. Siv Westerberg,

a lawyer practising at Gothenburg.

3.   The application is directed against Sweden. The respondent

Government were represented by their agent Ms. Eva Jagander, Ministry

for Foreign Affairs.

4.   The application concerns a women's clinic's submission of the

applicant's medical records to the Social Insurance Office and the lack

of a remedy which she could use to complain about this measure. The

applicant invokes Articles 6, 8 and 13 of the Convention.

B.   The proceedings

5.   The application was introduced on 23 September 1992 and

registered on 23 October 1992.

6.   On 6 April 1994 the Commission (Second Chamber) decided, pursuant

to Rule 48 para. 2 (b) of its Rules of Procedure, to give notice of the

application to the respondent Government and to invite the parties to

submit written observations on its admissibility and merits.

7.   The Government's observations were submitted on 30 August 1994

after an extension of the time-limit fixed for this purpose. The

applicant replied on 25 October 1994.

8.   On 22 May 1995 the Plenary Commission ordered the transfer of the

application to it and declared the application admissible.

9.   The text of the Commission's decision on admissibility was sent

to the parties on 2 June 1995 and they were invited to submit such

further information or observations on the merits as they wished. The

Government submitted further observations on 7 July 1995, whereas the

applicant did not submit any further information or observations on the

merits.

10.  After declaring the case admissible, the Commission, acting in

accordance with Article 28 para. 1 (b) of the Convention, also placed

itself at the disposal of the parties with a view to securing a

friendly settlement. In the light of the parties' reaction, the

Commission now finds that there is no basis on which such a settlement

can be effected.

C.   The present Report

11.  The present Report has been drawn up by the Commission in

pursuance of Article 31 of the Convention and after deliberations and

votes, the following members being present:

          MM.  S. TRECHSEL, President

               H. DANELIUS

               E. BUSUTTIL

               C.A. NØRGAARD

               G. JÖRUNDSSON

               A.S. GÖZÜBÜYÜK

               A. WEITZEL

               J.-C. SOYER

               H.G. SCHERMERS

          Mrs. G.H. THUNE

          Mr.  F. MARTINEZ

          Mrs. J. LIDDY

          MM.  L. LOUCAIDES

               J.-C. GEUS

               M.P. PELLONPÄÄ

               B. MARXER

               M.A. NOWICKI

               I. CABRAL BARRETO

               B. CONFORTI

               N. BRATZA

               I. BÉKÉS

               J. MUCHA

               E. KONSTANTINOV

               D. SVÁBY

               G. RESS

               A. PERENIC

               C. BÎRSAN

12.  The text of this Report was adopted on 11 April 1996 by the

Commission and is now transmitted to the Committee of Ministers of the

Council of Europe, in accordance with Article 31 para. 2 of the

Convention.

13.  The purpose of the Report, pursuant to Article 31 of the

Convention, is:

     (i)  to establish the facts, and

     (ii) to state an opinion as to whether the facts found disclose

          a breach by the State concerned of its obligations under

          the Convention.

14.  The Commission's decision on the admissibility of the application

is annexed hereto.

15.  The full text of the parties' submissions, together with the

documents lodged as exhibits, are held in the archives of the

Commission.

II.  ESTABLISHMENT OF THE FACTS

A.   The particular circumstances of the case

16.  On 9 October 1981 the applicant allegedly injured her back while

working at a day care centre. She was at the time pregnant and

contacted the same day the women's clinic at the regional hospital in

her home town.

17.  On 13 March 1991 the applicant claimed compensation under the

Industrial Injury Insurance Act (Lagen om arbetsskadeförsäkring,

1976:380; hereinafter "the Insurance Act") from the Social Insurance

Office (Försäkringskassan). She was later asked to supplement her

claim, which she did on 11 May 1992. She stated that, as a consequence

of the above injury, she had been on sick leave during the periods

9 October 1981 - 4 April 1982, 12 May 1986 - 24 January 1989,

11 - 17 February 1991 and from 20 February 1991.

18.  Upon request the applicant thereafter received a copy of the file

which had been compiled by the Social Insurance Office for the purpose

of examining her claim. From the documents in the file she learned

that, on 25 March 1992, the Office had made the following request to

the above women's clinic:

(translation)

     "[The applicant] has reported an industrial injury which

     occurred on 9 October 1981. She contacted your clinic as

     she was pregnant at the time. The Social Insurance Office

     requests copies of medical records from that time. We hope

     you will assist us as soon as possible as the matter has

     been pending for some time and as we need the records to be

     able to determine the matter."

19.  The applicant further learned that, on 30 March 1992, the head

of the clinic in reply had submitted copies of her medical records

containing information on treatment received in October 1981, March

1982 and October 1985 - February 1986. The applicant had not in any way

been involved in, or consented to, the disclosure of the information.

20.  According to the records from October 1981, the applicant had

expressed, inter alia, that she had pains in her hips and back and that

her back had felt tired for two weeks. There is no indication of the

applicant alleging that she had injured herself at work. The records

from October 1985 - February 1986 concerned an abortion performed on

22 October 1985 and the following after-treatment. All medical

interventions documented in the separate medical records, including the

abortion, had been partly related to the applicant's back problems.

21.  On 19 May 1992 the Social Insurance Office rejected the

applicant's request for compensation under the Insurance Act, finding

that her sick leave had not been caused by an industrial injury.

Following the applicant's request for a review, the decision was upheld

by the Social Insurance Board (Socialförsäkringsnämnden) on

5 August 1992.

22.  The applicant appealed to the local County Administrative Court

(Länsrätten). On 21 December 1992 the Court rejected the appeal. Noting

that the applicant had changed her initial account of the alleged

injury and that she had suffered from a disease affecting her back

since the age of 14, the Court considered that there were weighty

reasons for believing that the sick leave beginning on 9 October 1981

had not been caused by that injury. The Court further found that the

later periods of sick leave were not related to the alleged injury.

23.  On 2 May 1995 the Administrative Court of Appeal (Kammarrätten)

in Jönköping upheld on appeal the County Administrative Court's

judgment. On 26 February 1996 the Supreme Administrative Court

(Regeringsrätten) refused the applicant leave to appeal.

B.   Relevant domestic law

24.  Under Sections 1 and 2 of Chapter 2 of the Freedom of the Press

Act (Tryckfrihetsförordningen), which is part of the Swedish

Constitution, everyone is entitled to have access to public documents

unless, within defined areas, access is limited by law. The Secrecy Act

(Sekretesslagen, 1980:100) contains such limitations.

25.  The main provision on the confidentiality of information in the

field of health and medical care is found in Chapter 7, Section 1 of

the Secrecy Act, the relevant parts of which read as follows:

(translation)

     "Secrecy applies ... in the field of health and medical

     care to information on the individual's state of health or

     otherwise concerning his or her private life, unless it is

     clear that the information can be disclosed without any

     harm to the individual or persons closely related to him or

     her. ..."

26.  As appears from this provision, there is a presumption of

confidentiality. It is applicable not only in relation to the public,

but also in relation to other public authorities. There are, however,

legal provisions to the effect that health and medical care authorities

shall submit information to another public authority. Thus, Chapter 14,

Section 1 of the Secrecy Act provides the following:

(translation)

     "Secrecy does not prevent ... the disclosure of information

     to another public authority, if an obligation to disclose

     the information is laid down in an act of law or a

     Government ordinance."

27.  Such an obligation follows from in Chapter 8, Section 7 of the

Insurance Act which, in relevant parts, reads as follows:

(translation)

     "A public authority ... [is] obliged to submit, on request,

     to the courts, the National Social Insurance Board [or] the

     Social Insurance Office ... information on a named person

     concerning circumstances of importance to the application

     of this Act. ..."

28.  In this context, a physician employed by a public hospital, as

in the present case, is regarded as a representative of a public

authority. A corresponding duty of the Social Insurance Office to

request information is found in the Ordinance on Industrial Injury

Insurance and State Injury Compensation Guarantee (Förordning om

arbetsskadeförsäkring och statligt personskadeskydd, 1977:284;

hereinafter "the Insurance Ordinance"), Section 13 of which provides,

in so far as relevant, the following:

(translation)

     "The Social Insurance Office shall obtain a physician's

     opinion on a reported industrial injury. ..."

29.  Furthermore, the person applying for compensation under the

Insurance Act is, according to Chapter 8, Section 6 of the Act, obliged

to provide the Social Insurance Office with information of importance.

30.  If information is submitted to the Social Insurance Office, the

confidentiality of that information is regulated by Chapter 7,

Section 7 of the Secrecy Act which, in so far as relevant, provides the

following:

(translation)

     "Secrecy applies at the Social Insurance Office, the

     National Social Insurance Board and the courts in matters

     arising under the legislation on ... industrial injury

     insurance ... in respect of information on an individual's

     state of health or otherwise concerning his or her private

     life, if it can be assumed that the individual concerned or

     persons closely related to him or her will be harmed if the

     information is disclosed. ..."

31.  Thus, whereas a presumption of confidentiality applies within the

field of health and medical care to information concerning an

individual's private life, there is no such presumption in respect of

information kept at the Social Insurance Office.

32.  Under the Freedom of the Press Act and the Secrecy Act, there is

a right to appeal against a decision not to grant access to public

documents. There is, however, no such right in respect of decisions to

grant access to information contained in public documents. Furthermore,

there is no right for the individual concerned to be consulted before

such information is disclosed or to be notified of the disclosure

afterwards.

33.  Under Chapter 20, Section 3 of the Penal Code (Brottsbalken), a

physician who, intentionally or through negligence, discloses

information which should be kept confidential according to law is

guilty of breach of professional secrecy. Proceedings may be brought

in the ordinary courts by the public prosecutor or, if the public

prosecutor decides not to prosecute, the aggrieved individual. Such a

breach of professional secrecy may also constitute a basis for claiming

damages under Chapter 2, Section 1 or Chapter 3, Section 1 of the Tort

Liability Act (Skadeståndslagen, 1972:207). Action may be taken by the

individual in the ordinary courts against the physician or his or her

employer.

34.  Public authorities and their employees are, furthermore, subject

to the supervision of the Chancellor of Justice (Justitiekanslern) and

the Parliamentary Ombudsman (Justitieombudsmannen). The Chancellor and

the Ombudsman investigate whether those exercising public powers abide

by laws and follow applicable instructions and may prosecute a certain

individual or refer the matter to disciplinary action by the relevant

authority.

III. OPINION OF THE COMMISSION

A.   Complaints declared admissible

35.  The Commission has declared admissible the applicant's complaints

under Article 8 (Art. 8) of the Convention that the submission of her

medical records to the Social Insurance Office constituted an

unjustified interference with her right to respect for her private life

and under Articles 6 and 13 (Art. 6, 13) of the Convention that she had

no remedy which she could use to complain about this measure.

B.   Points at issue

36.  Accordingly, the issues to be determined are

     - whether there has been a violation of Article 8 (Art. 8) of the

Convention;

     - whether there has been a violation of Article 6 (Art. 6) of the

Convention; and

     - whether there has been a violation of Article 13 (Art. 13) of

the Convention.

C.   As regards Article 8 (Art. 8) of the Convention

37.  Article 8 (Art. 8) of the Convention reads as follows:

     "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 and morals, or for the protection of the rights and

     freedoms of others."

admissibility of the present application, the Commission, disagreeing

with the Government's opinion, found that no express waiver of a right

to protection of confidential information had been made by the

applicant nor could an unequivocal waiver be inferred from the fact

that she had made a claim for compensation under the Industrial Injury

Insurance Act. The Commission thus concluded that Article 8 (Art. 8)

of the Convention applies to the present complaint.

     a.   Whether there was an interference with the applicant's

          rights under Article 8 para. 1 (Art. 8-1)

39.  The applicant submits that the women's clinic's submission of

copies of her medical records to the Social Insurance Office without

her knowledge or consent interfered with her right to respect for her

private life. She maintains that the information contained in these

records were of a highly sensitive and private nature. Allegedly, she

could not anticipate, when she claimed compensation from the Office,

that information on the abortion performed several years after the

alleged back injury would be forwarded to the Office. She further

refers to the fact that the information in question is not protected

by the same level of confidentiality at the Office as at the clinic.

40.  The Government submit that there has been no interference with

the applicant's rights under Article 8 para. 1 (Art. 8-1). The

Government contend that the submission of information to the Social

Insurance Office was initiated by the applicant's claim for

compensation under the Insurance Act. The Office's obligation to

request information from the women's clinic and the corresponding duty

of the clinic to submit that information were easily accessible

elements of Swedish law and the applicant was thus, at the time when

she lodged her claim, able to anticipate that the information in

question would be obtained by the Office. As the abortion was related

to the applicant's back condition, it was furthermore not surprising

that the clinic chose to include copies of the medical records

concerning this operation in its submissions to the Office. The

Government further submit that it should be taken into account that the

information in question has not been made public and will, due to its

highly personal nature, remain confidential at the Social Insurance

Office.

41.  The Commission notes that, as a result of the submission of the

applicant's medical records from the women's clinic to the Social

Insurance Office, information of a private and sensitive nature was

disclosed to a certain number of people at the Office. The Commission

finds that this amounted to an interference with the applicant's right

to respect for her private life as ensured by Article 8 para. 1

(Art. 8-1) (cf. Eur. Court H.R., Leander judgment of 26 March 1987,

Series A no. 116, p. 22, para. 48).

justified under the terms of Article 8 para. 2 (Art. 8-2). In this

respect, three conditions must be satisfied: the interference must be

"in accordance with the law", it must pursue one or more of the

legitimate aims enumerated in para. 2 and it must be "necessary in a

democratic society" for that or those aims.

     b.   Whether the interference was in accordance with the law

information was not in accordance with domestic law, as it went beyond

the Social Insurance Office's request. She points to the fact that the

clinic forwarded copies of her medical records covering the period

October 1981 - February 1986, although the Office had only requested

the records from the time of the alleged injury. The later records were

thus not submitted on request, as required by Chapter 8, Section 7 of

the Insurance Act.

44.  The Government contend that the provisions applicable in the

present case were easily accessible to the applicant, as they are

published on a yearly basis in the Swedish Code of Statutes. Moreover,

they had foreseeable consequences, as the respective obligations of the

Social Insurance Office and the women's clinic to obtain and submit

information were unconditional. Furthermore, the rationale behind the

provision obliging the Social Insurance Office to obtain information

is that the Office should acquire all information relevant to a

particular compensation claim. The Government share the clinic's

apparent opinion that the information on the abortion was of relevance

to the applicant's claim. The information was thus forwarded in

accordance with the law although the Office's request explicitly

referred only to the time when the alleged injury occurred.

45.  The Commission recalls that the expression "in accordance with

the law", within the meaning of Article 8 para. 2 (Art. 8-2), requires

firstly that the impugned measures should have a basis in domestic law.

It also refers to the quality of the law in question, requiring that

it be accessible to the persons concerned and formulated with

sufficient precision to enable them - if need be, with appropriate

advice - to foresee, to a degree that is reasonable in the

circumstances, the consequences which a given action may entail. A law

which confers a discretion is not in itself inconsistent with this

requirement, provided that the scope of the discretion and the manner

of its exercise are indicated with sufficient clarity, having regard

to the legitimate aim in question, to give the individual adequate

protection against arbitrary interference (cf., e.g., Eur. Court H.R.,

Margareta and Roger Andersson v. Sweden judgment of 25 February 1992,

Series A no. 226-A, p. 25, para. 75).

46.  The Commission notes that pursuant to Chapter 8, Section 7 of the

Insurance Act the women's clinic was obliged to submit, on request by

the Social Insurance Office, information of importance to the

determination of the applicant's claim for compensation under that Act.

47.  It is true that the Social Insurance Office's request to the

clinic referred only to the applicant's medical records from the time

of the back injury she had allegedly sustained at work on 9 October

1981. It could thus be argued that the medical records for the time

that followed were not submitted on request and thus not pursuant to

Chapter 8, Section 7 of the Insurance Act. However, the provision

stipulates that information of importance to the application of the Act

shall be submitted. The Office's request was made expressly to provide

a basis for its determination of the applicant's claim for

compensation. The abortion performed in 1985 and the other treatment

documented in the medical records had been partly related to the

applicant's back problems. It appears that the clinic, for this reason,

regarded the submitted information to be of importance to the Office's

determination of that claim. The Commission therefore considers that

the information in question was submitted pursuant to Chapter 8,

Section 7 of the Insurance Act.

48.  Having further regard to the Social Insurance Office's duty under

Section 13 of the Insurance Ordinance to obtain a physician's opinion

on a reported industrial injury, the Commission considers that it was

reasonably foreseeable to the applicant that the information in

question could be imparted to the Office following her compensation

claim. On account of their publication, the applicable provisions were,

furthermore, easily accessible to the applicant.

49.  Accordingly, the Commission finds that the information in the

present case can reasonably be regarded as having been submitted "in

accordance with the law" within the meaning of Article 8 para. 2

(Art. 8-2).

     c.   Whether the interference pursued a legitimate aim

50.  The applicant does not submit any observations on this point.

51.  The Government contend that if the Social Insurance Office, in

determining compensation claims under the Insurance Act, were to depend

entirely on evidence either submitted by the claimants or obtained with

their consent, the Office would have to pay out compensation to almost

every claimant. As the economic resources available to the Office are

limited, the submission of information in the present case pursued the

legitimate aims of protecting the economic well-being of the country

and the rights of those who are in the greatest need of compensation.

52.  The Commission accepts that the respective legal obligations to

submit and obtain information in cases like the present one and the

actual submission of information in the present case served the

legitimate aim of protecting the economic well-being of the country.

It does not find it necessary to examine the Government's other

contention on this point.

     d.   Whether the interference was necessary

53.  The applicant maintains that it was not necessary for the Social

Insurance Office to have access to medical records on her

gynaecological treatment. Instead, the Office could have obtained

information by requesting the applicant to submit a medical certificate

on the alleged back injury. In this way, the applicant could have

decided herself whether she wanted information on the gynaecological

treatment to be disclosed to the Office and, if such information was

necessary for the Office's determination of her compensation claim,

whether she wanted to pursue the claim. In this connection, the

applicant further refers to the lower level of confidentiality

applicable at the Social Insurance Office.

54.  The Government submit that the burden on the applicant caused by

the disclosure of information was not excessive. The Government argue

that the applicant claimed compensation although it must have been

clear to her that information could be released from the clinic where

she had previously received treatment. The applicant has later appealed

to the courts against the Social Insurance Office's decision to reject

her claim and thus does not seem to mind that the information obtained

by the Office becomes known in even larger circles. Moreover, the

information in question has not been made public and will, according

to the Government, remain confidential at the Social Insurance Office.

55.  The Commission recalls that the notion of necessity implies that

the interference corresponds to a pressing social need and, in

particular, that it is proportionate to the legitimate aim pursued. The

Commission has to take into account that a margin of appreciation is

left to the Contracting States. That does not mean, however, that the

Commission's review is limited to ascertaining whether the respondent

State has exercised its discretion reasonably, carefully and in good

faith. The Commission must determine whether the reasons adduced to

justify the interference are relevant and sufficient (cf., e.g.,

Eur. Court H.R., Olsson judgment of 24 March 1988, Series A no. 130,

pp. 31-32, paras. 67-68).

56.  The Commission notes that, following the applicant's claim for

compensation, the Social Insurance Office had to examine whether the

applicant had injured her back and, if so, whether the injury had

occurred at her place of work. If it had found that the applicant was

entitled to compensation under the Insurance Act, the further question

of the amount to be awarded would have arisen.

57.  It is not for the Commission to decide which information the

Social Insurance Office required for its determination of these issues,

the evaluation of evidence being a question for the domestic authority.

Instead, the question to be decided is whether it was necessary, in the

circumstances of the case, that information on the gynaecological

treatment received by the applicant at the women's clinic, including

the abortion, was forwarded from the clinic to the Office.

58.  The Commission notes that the applicant claimed compensation

under the Insurance Act due to back problems allegedly caused by an

accident at her place of work on 9 October 1981. As is evident from the

Social Insurance Office's request to the women's clinic on 25 March

1992, the Office was aware, apparently from information supplied by the

applicant, that she had consulted the clinic on the day of the alleged

accident. The medical records concerning the treatment received that

day were therefore clearly material to the determination of her claim.

This does not seem to be disputed by the applicant.

59.  The Commission further notes that, according to the medical

records from October 1985 - February 1986, the applicant's abortion and

the following after-treatment were partly related to her back problems.

As the Social Insurance Office had to determine whether the applicant

was entitled to compensation not only for the months following the

alleged accident but also for periods subsequent to the abortion, in

particular the period starting on 12 May 1986, it appears that also

these later records were of relevance to the Office's examination. This

must have been apparent to the applicant when she claimed compensation.

60.  Under Chapter 8, Section 6 of the Insurance Act, the Social

Insurance Office could have requested the applicant to submit

information. In fact, the Office asked the applicant to supplement her

compensation claim, which she did on 11 May 1992. However, if the

Office were to rely entirely on submissions made by the applicant or

obtained with her consent, there would have been an obvious risk of the

applicant withholding important information. It was therefore

reasonable for the Office to request information directly from the

clinic where the applicant had received treatment. Since the medical

records appeared to be relevant to the matter to be decided by the

Office, it was also reasonable that the clinic made the records

available to the Office.

61.  It is true that the medical records received from the women's

clinic contained information of a highly private and sensitive nature,

which the applicant wished to be kept secret. In this respect, the

Commission notes, however, that the information has not been made

public and will, due to its contents and to the relevant legal

obligation, remain confidential at the Social Insurance Office, which

is used to deal with cases of this kind. The Commission therefore

considers that the interference created by the disclosure of

information was of a limited nature.

62.  In the light of the foregoing, the Commission finds that the

disclosure of information to the Social Insurance Office was supported

by relevant and sufficient reasons. Having regard to their margin of

appreciation, the Swedish authorities were entitled to think that this

measure was necessary. Accordingly, the Commission concludes that the

disclosure of information can reasonably be regarded as "necessary in

a democratic society" within the meaning of Article 8 para. 2

(Art. 8-2) of the Convention.

     CONCLUSION

63.  The Commission concludes, by 22 votes to 5, that there has been

no violation of Article 8 (Art. 8) of the Convention.

D.   As regards Article 6 (Art. 6) of the Convention

64.  Article 6 (Art. 6) of the Convention reads, in so far as

relevant, as follows:

     "1.  In the determination of his civil rights and

     obligations ..., everyone is entitled to a ... hearing by

     [a] ... tribunal ..."

     a. Applicability of Article 6 para. 1 (Art. 6-1)

65.  The applicant submits that it is not consistent with the

Convention that a physician may decide to forward medical records

containing information of a private and sensitive nature to the Social

Insurance Office without the individual being notified thereof and

without there being a possibility to appeal to a court before the

decision is executed. This is especially true in the present case, as

the applicant could hardly foresee, when claiming compensation from the

Office, that information on treatment received several years after the

alleged industrial injury would be disclosed. Moreover, this

information was not of importance to the Office's determination of her

compensation claim. Furthermore, although an appeal to a court could

have delayed the determination, the delay would have been of no

significance, as, in any event, the proceedings before the Office

allegedly take several months or years.

66.  The Government submit that the applicant cannot claim, on

arguable grounds, that she was entitled under Swedish law to protection

of confidentiality of the information in question in relation to the

Social Insurance Office. There was thus no "right" at stake. The

Government therefore contest the applicability of Article 6 (Art. 6)

in the present case and maintain that this complaint should be declared

incompatible with the Convention ratione materiae.

67.  The Government argue that the applicant had no standing under

Swedish law in procedures concerning the granting of access to official

documents. Thus, she could not appeal against a decision to grant

access to medical records containing information concerning her, nor

was her consent to the disclosure of information required.

68.  The Government further refer to Chapter 14, Section 1 of the

Secrecy Act, according to which the secrecy which otherwise applies

shall not prevent the communication of information to another authority

if there is an obligation under the law to communicate the information

in question. Such an obligation is laid down in the Insurance Act.

69.  Should the Commission be of the opinion that the applicant had

a "right" under Swedish law in the present case, the Government reserve

its position as to whether there was a genuine and serious dispute, the

outcome of which was decisive for such a right, and as to whether the

entitlement in issue was a "civil right".

70.  The Commission recalls that the applicability of Article 6

(Art. 6) depends on whether there was a dispute over a "right" which

can be said, at least on arguable grounds, to be recognised under

domestic law, and, if so, whether this right was of a "civil" character

within the meaning of Article 6 para. 1 (Art. 6-1). In particular, the

dispute must be genuine and serious, it may relate not only to the

actual existence of a right but also to its scope and the manner of its

exercise and, finally, the results of the proceedings concerning the

dispute must be directly decisive for such a right (cf., e.g., Eur.

Court H.R., Zander v. Sweden judgment of 25 November 1993, Series A no.

279-B, p. 38, para. 22). The notion of a dispute should be given a

substantive rather than a formal meaning (cf., e.g., Eur. Court H.R.,

Le Compte, Van Leuven and De Meyere judgment of 23 June 1981, Series

A no. 43, p. 20, para. 45).

71.  The Commission further recalls that Chapter 7, Section 1 of the

Secrecy Act contains a presumption that information on an individual's

state of health or otherwise concerning his or her private life shall

be kept secret by authorities and practitioners within the field of

health and medical care. This presumption applies not only in relation

to the public, but also in relation to other authorities.

72.  However, according to Chapter 14, Section 1 of the Secrecy Act,

the above provision does not prevent the disclosure of information to

another authority, if an obligation to disclose information is

prescribed by law. Such an obligation is laid down in Chapter 8,

Section 7 of the Insurance Act, which provides that a public authority,

including the women's clinic in the present case, is obliged to submit,

on the Social Insurance Office's request, information concerning

circumstances of importance to the application of the Insurance Act.

73.  The Commission notes that Chapter 8, Section 7 of the Insurance

Act contains a restriction on the individual's right to protection of

confidentiality of information. It might therefore be argued, as do the

Government, that the individual does not have a right to

confidentiality if information is forwarded pursuant to that provision.

However, information shall be forwarded by the responsible authority

only to the extent that it is of importance to the Social Insurance

Office's determination of a compensation claim. Information deemed to

be of no such importance shall not be disclosed and shall thus remain

confidential at the responsible authority. Thus, the authority must

make an assessment as to which information it should forward. In a

particular case, the individual concerned may therefore disagree with

the authority's assessment and claim that he or she is entitled to

confidentiality under the law, namely Chapter 7, Section 1 of the

Secrecy Act. The individual may claim that certain pieces of

information should not be submitted to the Social Insurance Office as

they are of no importance to the Office's determination.

74.  The Commission is therefore of the opinion that an individual

challenging the assessment made by the submitting authority under

Chapter 8, Section 7 of the Insurance Act has an arguable right to

confidentiality recognised by Swedish law.

75.  In the present case, the applicant challenges the women's

clinic's decision to forward medical records containing information on

her gynaecological treatment to the Social Insurance Office, claiming

that the information was of no importance to the Office's determination

of her compensation claim.

76.  The Commission finds that, in this respect, the applicant claims

an arguable right to confidentiality of the information in question.

Accordingly, there was a genuine and serious dispute, albeit latent as

the applicant was not informed before the disclosure, between the

applicant and the women's clinic as to the necessity of forwarding the

information to the Social Insurance Office. Moreover, the clinic's

decision to forward the information was directly decisive for the

applicant's alleged right to confidentiality.

77.  As regards the character of the right at issue, the Commission

notes that the right related to information on the medical treatment

received by the applicant. It thus concerned her private life.

Consequently, the right at issue must be considered a civil right.

78.  The Commission therefore finds that Article 6 para. 1 (Art. 6-1)

of the Convention is applicable to the applicant's complaint.

     b.  Compliance with Article 6 para. 1 (Art. 6-1)

79.  The next issue to be determined is whether the applicant had at

her disposal a procedure satisfying the requirements of Article 6

para. 1 (Art. 6-1) of the Convention with regard to the above dispute.

80.  In this respect, the Government submit that a general provision

providing for a court review before information is submitted from one

authority to another would give rise to serious practical problems. As

an example, the Government refer to cases of child abuse, in which a

requirement to obtain a court permission before the relevant

information is forwarded to the responsible Social Council would

inevitably delay the Council's intervention and could entail grave

risks of further abuse of the child whose life and safety may be at

stake.

81.  The Commission recalls that a physician who discloses information

which should be kept confidential according to law may be prosecuted,

by the public prosecutor or the aggrieved individual, for breach of

professional secrecy under the Penal Code. Such a breach may also

constitute a basis for claiming damages under the Tort Liability Act.

A physician in public service is, furthermore, subject to the

supervision of the Chancellor of Justice and the Parliamentary

Ombudsman, who may prosecute a physician who has not followed the

applicable instructions or refer the matter to disciplinary action by

the relevant authority. An individual who does not consent to a

decision to submit information to the Social Insurance Office has,

however, no right to have the dispute determined by a court or other

authority before the disclosure.

82.  The Commission first finds that the Chancellor of Justice and the

Parliamentary Ombudsman cannot be considered "tribunals" for the

purposes of Article 6 para. 1 (Art. 6-1) of the Convention.

83.  The Commission, however, notes that the applicant, after having

learned that the information had been disclosed, could have requested

the public prosecutor to institute criminal proceedings and, if this

had been refused, could have instituted criminal proceedings herself.

She could also have taken civil action for damages against the public

authority responsible for the women's clinic which had submitted the

information. In examining whether there had been a breach of

professional secrecy, the courts would have assessed whether Chapter

8, Section 7 of the Insurance Act had been correctly applied and would

thus have determined the dispute concerning the necessity of forwarding

the information in question to the Social Insurance Office.

84.  It is true that the courts would have determined the dispute in

the case after the information had actually been disclosed and that the

effects of the disclosure would thus have remained. In this connection,

the Commission, however, recalls its above finding under Article 8

(Art. 8) of the Convention that the information in question has not

been made public and that, therefore, the interference created by the

disclosure was of a limited nature.

85.  The Commission considers that, in the circumstances of the case,

court proceedings in which it could be determined whether or not the

disclosure of information was lawful and in which a criminal conviction

could be pronounced or civil damages be awarded constituted an

effective remedy for the purposes of Article 6 (Art. 6) of the

Convention.

86.  It follows that the applicant had access to a court for the

determination of her civil rights.

     CONCLUSION

87.  The Commission concludes, by 24 votes to 3, that there has been

no violation of Article 6 para. 1 (Art. 6-1) of the Convention.

E.   As regards Article 13 (Art. 13) of the Convention

88.  Article 13 (Art. 13) of the Convention provides the following:

     "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."

89.  Having regard to its conclusion under Article 6 para. 1

(Art. 6-1) of the Convention (para. 86), the Commission does not

consider it necessary to examine the case also under Article 13

(Art. 13). The requirements of Article 13 (Art. 13) are less strict

than, and are here absorbed by, those of Article 6 para. 1 (Art. 6-1)

(cf., e.g., Eur. Court H.R., Sporrong and Lönnroth judgment of

23 September 1982, Series A no. 52, p. 31, para. 88).

     CONCLUSION

90.  The Commission concludes, by 20 votes to 7, that no separate

issue arises under Article 13 (Art. 13) of the Convention.

F.   Recapitulation

91.  The Commission concludes, by 22 votes to 5, that there has been

no violation of Article 8 (Art. 8) of the Convention (para. 63).

92.  The Commission concludes, by 24 votes to 3, that there has been

no violation of Article 6 para. 1 (Art. 6-1) of the Convention (para.

87).

93.  The Commission concludes, by 20 votes to 7, that no separate

issue arises under Article 13 (Art. 13) of the Convention (para. 90).

Secretary to the Commission               President of the Commission

       (H.C. KRÜGER)                             (S. TRECHSEL)

                                                 (Or. English)

       PARTLY CONCURRING AND PARTLY DISSENTING OPINION

                      OF MR. H. DANELIUS

         JOINED BY MM. C.A. NØRGAARD, G. JÖRUNDSSON,

                 M.P. PELLONPÄÄ AND B. MARXER

     I voted in favour of the conclusion that Article 6 para. 1 of the

Convention has not been violated in the present case but based my vote

on considerations different from those of the majority. Moreover, I

voted against the conclusion that no separate issue arises in regard

to Article 13 of the Convention. I wish to explain my opinion as

follows.

1.   In order for Article 6 para. 1 to be applicable, there must be

a dispute about a right which can be considered, on arguable grounds,

to be recognised in domestic law.

     As regards the present case, I first note that it concerns events

which occurred before the Convention was incorporated into Swedish law.

Thus, Article 8 was not yet directly applicable law in Sweden.

     It is true that Chapter 7, Section 1 of the Secrecy Act provides

a general protection against disclosure of information in the field of

health and medical care. However, this protection is not without

exceptions, and the legal provision which was applied in the present

case was Chapter 8, Section 7 of the  Industrial Injury Insurance Act,

according to which any public authority is obliged to submit, on

request, to a Social Insurance Office information on a person

concerning circumstances of importance to the application of that Act.

     It thus appears that where, as in the present case, a person has

requested a Social Insurance Office to grant certain social insurance

benefits, that Office is entitled to receive from other public

authorities, such as a public hospital, medical information about the

person concerned, the only condition being that such information is of

relevance to the matter under consideration. There is thus no exception

as regards information of a sensitive character and there is no

requirement that the public authority which is asked to provide the

information should weigh the interests of the person concerned against

those involved in the consideration of whether or not certain  benefits

should be granted from public funds. Nor is there any requirement that

the person concerned should be heard before the information is conveyed

to the Office.

     I note that in the present case the applicant had asked for

benefits under the Industrial Injury Insurance Act on the ground that

that she had injured her back during her work almost ten years earlier.

The Social Insurance Office thus had to consider whether the

applicant's physical condition was the result of an industrial injury

a long time ago or whether it could have had other causes. Information

about events which had occurred during the long intervening period and

which might have affected the physical condition upon which her claim

was based could therefore not be considered to be without relevance.

     In these circumstances, and having regard to the wide scope of

Chapter 8, Section 7 of the Industrial Injury Insurance Act and to the

discretion which that provision confers on the public authorities, the

applicant cannot be considered to have had an arguable right under

Swedish law not to have the information at issue transmitted to the

Social Insurance Office.

     It follows that Article 6 para. 1 of the Convention was not

applicable in the present case. Consequently, there cannot have been

any violation of that provision.

2.   In view of the conclusion thus reached as to the applicability

of Article 6 para. 1, I could not support the conclusion that no

separate issue arises in regard to Article 13 of the Convention.

     As regards Article 13, I note that the Commission declared the

applicant's complaint relating to Article 8 of the Convention

admissible and that some members of the Commission even found a

violation of that Article. Consequently, I consider that the applicant

had an arguable claim of a violation of Article 8. It is therefore

necessary to consider whether she had at her disposal a remedy

satisfying the requirements of Article 13.

     The applicant was not informed in advance of the intention of the

women's clinic to hand over copies of her medical records to the Social

Insurance Office, and she was thus not given the opportunity to object

to the disclosure of these documents. Nor did Swedish law provide for

an appeal - whether judicial or administrative - against the decision

to make the records available.

     The Government have referred to the possibility of requesting

criminal prosecution against the responsible public official and of

bringing civil proceedings in order to obtain damages. However, it is

clear that only in very unusual circumstances could the handing over

of information from one public authority to another on the basis of

Chapter 8, Section 7 of the Industrial Injury Insurance Act give rise

to criminal proceedings. Moreover, the right to be granted damages in

such circumstances would also seem to be very limited in Swedish law.

     Consequently, I do not consider that either of these remedies

could be considered effective for the purposes of Article 13. Nor could

the right to complain to the Chancellor of Justice or the Parliamentary

Ombudsman, also referred to by the Government, be regarded as effective

remedies.

     My conclusion is therefore that the applicant did not have at her

disposal any effective remedy in Swedish law and that there has been

in the present case a violation of Article 13 of the Convention.

                                                 (Or. English)

              SEPARATE OPINION OF MR. S. TRECHSEL

     In the present case I fully agree with the opinion of

Mr. Danelius. With regard to the issue raised by the applicant under

Article 8, I accept that there existed an arguable claim and therefore

conclude that Article 13 applied but was not complied with.

                                                 (Or. English)

           DISSENTING OPINION OF MR. C.A. NØRGAARD,

          MRS. G.H. THUNE, MM. J. MUCHA AND D. SVÁBY

     We have voted in favour of finding a violation of Article 8 for

the following reasons:

     The information disclosed in the present case was of a highly

private and sensitive nature and the applicant wished, for this reason,

that it be kept secret. Although the information has not been made

public but has only been made available to a certain number of people

at the Social Insurance Office, we consider that the disclosure

constituted a serious interference with the applicant's private life.

Such an interference can only be justified by strong reasons.

     As is evident from the Social Insurance Office's request to the

women's clinic on 25 March 1992, the Office was aware, apparently from

information supplied by the applicant, that she had consulted the

clinic on 9 October 1981 and that there existed medical records

concerning the treatment received that day. Under Chapter 8, Section

6 of the Insurance Act, the applicant was obliged to provide the Office

with information of importance. In fact, the Office asked the applicant

to supplement her compensation claim, which she did on 11 May 1992. It

was thus possible for the Office to request the applicant to submit

copies of the medical records from October 1981. If it had found that

information to be insufficient, it could have required the applicant

to submit further information at the risk of her claim being rejected.

It could also have asked the clinic or the applicant whether further

information was available, which it then could have obtained from the

clinic with the applicant's consent or required the applicant to

submit.

     It is argued by the Government that the submission of information

in the present case served to protect the economic well-being of the

country and the rights of others as the Social Insurance Office would

have to pay out compensation to almost every claimant, if, in

determining compensation claims, it were to depend entirely on evidence

either submitted by the claimants or obtained with their consent.

     We consider, however, that medical records generally contain

private and sensitive information and that there might be strong and

justified reasons for the individual concerned to object to the

disclosure of such information. Thus, notwithstanding the need for the

Social Insurance Office to have correct and complete information for

the determination of the applicant's claim, these considerations called

for the authorities involved - the Office and the women's clinic - to

take every precaution to ensure that the invasion of the applicant's

privacy was reduced to a minimum.

     We recall that the Social Insurance Office had several

alternative means at its disposal for obtaining the information

necessary for the determination of the applicant's claim. Moreover, in

the event the applicant had refused the Office access to certain

information which it considered necessary for that determination, it

could have rejected the claim. We cannot find that the protection of

the legitimate aims invoked by the Government required that the Office

obtained information directly from the women's clinic without the

applicant's knowledge or that it would have been forced to grant the

applicant's claim had it not chosen this course of action.

     Even if the measures taken in the present case were to be

considered justified for the protection of the said aims, we find that

there were insufficient procedural safeguards to protect the

applicant's interests. In particular, neither the Office nor the clinic

consulted or notified the applicant regarding the request and the

subsequent submission of information. She was accordingly not in a

position to object or agree to the clinic's submission of the medical

records. We do not find it reasonable that, following the applicant's

claim for compensation under the Insurance Act, measures which affected

the determination of that claim and the respect for the applicant's

private life were taken without the applicant having been involved in

any way.

                                                 (Or. English)

            DISSENTING OPINION OF MRS. G.H. THUNE,

                   MM. J. MUCHA AND D. SVÁBY

     We have voted in favour of finding a violation also of Article 6

para. 1.

     Having found, like the majority of the Commission, that the

applicant on arguable grounds can claim a right to confidentiality of

the information in question in Sweden, we consider Article 6 to be

applicable in the present case.

     A procedure satisfying the requirements of Article 6 is thus

called for. We have reached the conclusion that the applicant did not

have at her disposal such a procedure.

     We note in particular that the availability of the existing

remedies - criminal prosecution by the aggrieved person against the

physician and action for damages - depends on the aggrieved individual

being informed that certain information has been forwarded to the

Social Insurance Office. There is, however, no obligation under Swedish

law to notify such a person of the disclosure of information. Thus,

notwithstanding the fact that the applicant in the present case,

through her own action, learned about the disclosure, we consider that

these remedies, as such, cannot be considered as effective in disputes

such as the present one. In the circumstances of the present case, they

further fail to meet the requirements of Article 6 para. 1 for the

following reasons.

     Some medical records forwarded by the women's clinic contained

information concerning the applicant's abortion and was thus of a very

private and sensitive nature. Moreover, the clinic's decision to

forward the records to the Social Insurance Office had immediate and

irreversible effects on the applicant's alleged right to

confidentiality of that sensitive information. The obvious reason for

having this decision reviewed by a court was to obtain the court's

finding that it was not necessary in the circumstances to forward the

information to the Office and that the information should thus be kept

confidential by the clinic. Thus, a remedy available only after the

information had been disclosed to the Office could not effectively

determine the applicant's alleged right to confidentiality.

     We find that the nature of the right at stake required that the

applicant could have the dispute between her and the clinic determined

by a court prior to the disclosure to the Office. The existing remedies

were, however, available to the applicant only after the information

had actually been disclosed.

     It is true that the requirement to obtain a court permission

prior to the disclosure of information could, to some extent, delay the

Social Insurance Office's determination of the applicant's compensation

claim. However, there were no interests of third persons or other

circumstances in the present case which required the information in

question to be forwarded immediately. In this connection, it should be

noted that the Office requested information from the women's clinic

more than a year after the applicant had lodged her claim for

compensation and that a further two months lapsed before the Office

took its decision on the claim.

                                                 (Or. English)

              DISSENTING OPINION OF MR. N. BRATZA

     Contrary to the view of the majority of the Commission, I

consider that there has been a violation of Article 8 of the Convention

in the present case. My reasons for so concluding are substantially

those set out in the dissenting opinion of Mr. Nørgaard and others. I

attach particular weight to the insufficiency of the procedural

safeguards to protect the applicant's right to respect for her private

life. As is noted in the dissenting opinion, the deficiency is in part

due to the fact that neither the Social Insurance Office nor the clinic

consulted or notified the applicant regarding the request and

subsequent submission of the applicant's medical records, with the

consequence that she was not in a position to object or agree to the

clinic's submission of the records. However, I also consider that the

preserving of a fair balance required that the applicant should have

had an opportunity of challenging the disclosure of the information

before  an independent authority prior to its disclosure, on the

grounds (inter alia) of its lack of relevance to the claim in question.

No such procedure was available to the applicant in the present case.

     As to the applicant's complaint under Article 6, I have not found

it necessary to resolve the question whether there was in the present

case an arguable right under Swedish law or a dispute as to the civil

rights of the applicant, and therefore whether Article 6 of the

Convention was applicable.

     Assuming the Article was applicable, my conclusion that there has

been a breach of Article 8 on the grounds, inter alia, that the

applicant was unable to challenge the disclosure of the information

before an independent authority in advance of its submission to the

Office makes it unnecessary for me to reach a separate conclusion as

to whether this deficiency also amounted to a breach of Article 6. As

to the position after disclosure, there existed a possibility for the

applicant to bring court proceedings to determine the lawfulness of the

disclosure: in such proceedings the courts could determine whether

Chapter 8 Section 7 of the Insurance Act had been correctly applied

and, in particular, whether it was necessary to forward the information

in question to the Social Insurance Office. At this stage, therefore,

the applicant had access to a court for the determination of her civil

rights, if any.

     In view of my conclusion in regard to the complaint under

Article 8 of the Convention, including the procedural aspects of that

provision, I have not found it necessary to examine whether there has

also been a violation of Article 13 of the Convention.