Z v. FINLAND
Doc ref: 22009/93 • ECHR ID: 001-45790
Document date: December 2, 1995
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EUROPEAN COMMISSION OF HUMAN RIGHTS
Application No. 22009/93
Z.
against
Finland
REPORT OF THE COMMISSION
(adopted on 2 December 1995)
TABLE OF CONTENTS
Page
I. INTRODUCTION
(paras. 1-18). . . . . . . . . . . . . . . . . . . . . .1
A. The application
(paras. 2-4). . . . . . . . . . . . . . . . . . . .1
B. The proceedings
(paras. 5-13) . . . . . . . . . . . . . . . . . . .1
C. The present Report
(paras. 14-18). . . . . . . . . . . . . . . . . . .2
II. ESTABLISHMENT OF THE FACTS
(paras. 19-110). . . . . . . . . . . . . . . . . . . . .4
A. The particular circumstances of the case
(paras. 19-85) . . . . . . . . . . . . . . . . . .4
B. Relevant domestic law and practice
(paras. 86-110) . . . . . . . . . . . . . . . . . 13
1. The right to remain silent as a witness
(para. 86) . . . . . . . . . . . . . . . . . 13
2. The right and obligation to observe secrecy
as a witness
(paras. 87-92) . . . . . . . . . . . . . . . 13
3. Seizure of confidential information
(para. 93) . . . . . . . . . . . . . . . . . 15
4. Protection of confidential information
(paras. 94-96) . . . . . . . . . . . . . . . 15
5. The obligation to report a contagious disease
(para. 97) . . . . . . . . . . . . . . . . . 16
6. Publicity of documents
(paras. 98-101) . . . . . . . . . . . . . . 16
7. Publicity of court proceedings
(paras. 102-103) . . . . . . . . . . . . . . 17
8. Disclosure of confidential information
(paras. 104-107) . . . . . . . . . . . . . . 17
9. Nullification and annulment
(paras. 108-109) . . . . . . . . . . . . . . 18
10. Case-law of the Supreme Court
(para. 110) . . . . . . . . . . . . . . . . 18
TABLE OF CONTENTS
Page
III. OPINION OF THE COMMISSION
(paras. 111-173) . . . . . . . . . . . . . . . . . . . 19
A. Complaints declared admissible
(para. 111) . . . . . . . . . . . . . . . . . . . 19
B. Points at issue
(para. 112) . . . . . . . . . . . . . . . . . . . 19
C. As regards Article 8 of the Convention
(paras. 113-165). . . . . . . . . . . . . . . . . 19
(i) The hearing of the applicant's doctors and
psychiatrist as witnesses
(paras. 114-125) . . . . . . . . . . . . . . 19
(ii) The investigatory measures, the inclusion
of the applicant's patient records in the
court documents and their future availability
to the public
(paras. 126-132) . . . . . . . . . . . . . . 22
(iii)The Court of Appeal's disclosure of, inter alia,
the applicant's status as a carrier of HIV
(paras. 133-138) . . . . . . . . . . . . . . 23
(iv) The alleged lack of safeguards
(paras. 139-140) . . . . . . . . . . . . . . 24
(v) Remaining aspects
(para. 141) . . . . . . . . . . . . . . . . 25
(vi) The Commission's considerations
(paras. 142-165) . . . . . . . . . . . . . . 25
CONCLUSION
(para. 166) . . . . . . . . . . . . . . . . . . . 30
D. As regards Article 13 of the Convention
(paras. 167-170). . . . . . . . . . . . . . . . . 30
CONCLUSION
(para. 171) . . . . . . . . . . . . . . . . . . . 30
E. Recapitulation
(paras. 172-173). . . . . . . . . . . . . . . . . 30
APPENDIX: DECISION OF THE COMMISSION AS TO THE
ADMISSIBILITY OF THE APPLICATION. . . . . . . . . 32
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 Finnish citizen, born in 1964 and resident in
Helsinki. She was represented before the Commission by
Mr. Markku Fredman, a lawyer practising in Helsinki, and
Dr. Martin Scheinin, Doctor of Law, Helsinki.
3. The application is directed against Finland. The respondent
Government were represented by their agent, Mr. Tom Grönberg, formerly
Director-General for Legal Affairs, Ministry for Foreign Affairs,
succeeded by Mr. Holger Rotkirch, present Director-General, both
assisted by co-agent Mr. Arto Kosonen, legal adviser of the Ministry.
4. The case concerns the manner in which evidence was taken by the
police and accepted by the courts in the course of criminal proceedings
instituted against the applicant's husband on suspicion that he had
knowingly contaminated other women with HIV. As a result of the
measures taken by the authorities the applicant's status as a carrier
of HIV and other intimate private matters were disclosed. The case also
concerns the alleged lack of effective remedies enabling the applicant
to challenge the measures taken or envisaged by the authorities. The
applicant invokes Articles 8 and 13 of the Convention.
B. The proceedings
5. The application was introduced on 21 May 1993 and registered on
8 June 1993.
6. On 2 March 1994 the Commission (First 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 20 April 1994.
The applicant replied on 1 June 1994.
8. On 5 July 1994 the Commission granted the applicant legal aid for
the representation of her case.
9. Additional observations on the admissibility and merits of the
case were submitted by the Government on 8 and 20 February 1995 and by
the applicant on 23 February 1995.
10. On 28 February 1995 the Commission declared the application
admissible and decided to give it precedence in accordance with Rule
33 of the Commission's Rules of Procedure. It furthermore invited the
parties to submit further observations on the merits and requested the
Government to submit copies of certain documents.
11. The text of the Commission's decision on admissibility was sent
to the parties on 8 March 1995. The applicant submitted further
observations on the merits on 4 April, 8 May, 5 and 22 June 1995 as
well as on 8 September 1995. The Government submitted observations and
copies of documents on 6 April 1995, 8 May 1995 as well as on 1, 16 and
27 June 1995.
12. 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.
13. On 28 November 1995 the plenary Commission ordered the transfer
of the application to itself.
C. The present Report
14. 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
C.L. ROZAKIS
E. BUSUTTIL
A.S. GÖZÜBÜYÜK
A. WEITZEL
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
P. LORENZEN
K. HERNDL
15. The text of this Report was adopted on 2 December 1995 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.
16. 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.
17. The Commission's decision on the admissibility of the application
is annexed hereto.
18. 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
19. The applicant and her husband, X., a foreign citizen, are both
carriers of the human immunodeficiency virus (HIV).
20. On 12 December 1991 X. committed a violent sexual offence against
O. and, on 19 December 1991, against R.
21. On 1 March 1992 X. committed an act of fornication with M.,
offending her personal freedom. She lodged a complaint with the police
which subsequently also began to investigate the case as attempted
manslaughter, suspecting that X. had deliberately subjected M. to a
risk of being infected with HIV.
22. In a police interview on 5 March 1992 M. identified X. as the
perpetrator. During the interview the police informed M. that the
applicant was carrying HIV.
23. On 6 March 1992 X. underwent a blood test for the purpose of
verifying whether he was carrying HIV.
24. On 10 March 1992 the City Court (raastuvanoikeus, rådstuvu-
rätten) of Helsinki convicted X. of the rape of O. on 12 December 1991
and sentenced him to a conditional prison sentence. The trial was held
behind closed doors and the City Court ordered that the documents
adduced in the case should remain confidential for a certain period of
time.
25. Around 15 March 1992 M.'s boyfriend T. saw the applicant and
asked her whether X. was carrying HIV.
26. On 19 March 1992 X. was informed of the results of the blood test
which indicated that he was carrying HIV.
27. In March or April 1992 the Public Prosecutor charged X. with
fornication violating M.'s personal freedom.
28. On 6 April 1992 T. telephoned the applicant and cited passages
from confidential court documents pertaining to the trial against X.
which had ended on 10 March 1992.
29. On 7 April 1992 the police interviewed the applicant in the
investigation of the offences committed on 1 March 1992 of which X. had
been suspected. She refused to testify as a witness, invoking her
status as X.'s spouse.
30. In connection with a second police interview on 10 April 1992 M.
was informed that X. was carrying HIV.
31. On 14 April 1992 the police interviewed T. as a witness in regard
to the contents of his telephone conversation with the applicant on
6 April 1992.
32. At the City Court's first hearing on 22 April 1992 M.'s counsel
asked X. whether the applicant was also carrying HIV. X. refused to
answer.
33. At the City Court's hearing on 6 May 1992 M. confirmed that she
had been informed by the police that the applicant was carrying HIV.
The City Court furthermore heard T. in regard to the contents of his
telephone conversation with the applicant on 6 April 1992.
34. On 18 May 1992 Chief Doctor L. of the hospital treating X. and
the applicant conveyed, with the consent of X., copies of X.'s patient
records to the Public Prosecutor. The remarks concerning the applicant
had been deleted from the copies.
35. On 20 May 1992 the applicant appeared before the City Court,
having been summoned to appear as a witness. She refused to give
testimony in this capacity, invoking her status as X.'s spouse.
36. On 27 May 1992 M.'s counsel remarked to the Public Prosecutor
that the copies of X.'s patient records appeared to be incomplete.
37. On 27 May 1992 the Public Prosecutor requested the police to hear
Chief Doctor L. as well as other doctors who had possibly been treating
X. The doctors were to be heard either as experts or witnesses with the
intention of obtaining information in regard to the question when X.
had become aware of his HIV-infection.
38. On 15 June 1992 the large evening paper "Ilta-Sanomat" reported
the trial against X., stating that he was carrying HIV and that there
was not yet any certainty as regards the applicant's possible status
as an HIV-carrier, since she had refused to give witness testimony.
39. On 20 July 1992 the police requested the City Court to order
Chief Doctor L. to disclose, as a witness, information enabling it to
be established when X. had become aware of his HIV-infection. Such an
order was issued by the City Court on 12 August 1992.
40. At its hearing on 12 August 1992 the City Court dismissed Chief
Doctor L.'s objections to testifying as a witness and proceeded to
hearing him in this capacity. In his testimony he also disclosed
information pertaining to the applicant but which had been omitted from
the copies of X.'s hospital records handed over to the prosecution.
41. The City Court ordered its hearing file, including the
transcripts of Chief Doctor L.'s testimony, to be kept confidential
until the determination of any possible charges against X. or until the
close of the pretrial investigation, should no further charges be
brought.
42. On 31 August 1992 X. had sexual intercourse with P.-L. and, on
6 September 1992 he raped her. On 10 September 1992 he raped P. Both
lodged complaints with the police which also began to investigate the
cases as attempted manslaughter, suspecting that X. had deliberately
subjected the complainants to a risk of being infected with HIV. On
10 September 1992 X. was arrested and later detained pending trial.
43. On 14 September 1992 the police interviewed the applicant in the
pre-trial investigation of the offences committed on 6 and
10 September 1992 of which X. had been suspected. She again refused to
testify as a witness, invoking her status as X.'s spouse. She also
expressed fears that the documents in the case, including her possible
testimony, would not remain confidential.
44. On 18 September 1992 R. lodged a complaint with the police,
accusing X. of rape committed on 19 December 1991. The police officer
recording the complaint supplemented it by stating that the applicant
had, already in 1990, been found to carry HIV. The police also began
to investigate the case as attempted manslaughter, suspecting that X.
had deliberately subjected R. to a risk of being infected with HIV.
45. At the City Court's hearing on 23 September 1992 the
complainants' (i.e. by now R.'s, M.'s, P.-L.'s and P.'s) counsel asked
X. whether the applicant was carrying HIV. X. refused to answer.
46. On 23 September 1992 Chief Doctor L. lodged a petition with the
Parliamentary Ombudsman (eduskunnan oikeusasiamies, riksdagens
justitieombudsman), complaining of his obligation to testify as a
witness.
47. At the City Court's hearing on 18 November 1992 the complainants'
counsel again asked X. whether the applicant was carrying HIV. He
referred to R.'s complaint of 18 September 1992 which the police had
supplemented by referring to the applicant's HIV-status. X. refused to
answer.
48. At the City Court's hearing on 30 December 1992 the complainants'
counsel asked X. when he had been informed that the applicant was
carrying HIV. X. refused to answer.
49. On 4 January 1993 the applicant was temporarily laid off by the
company employing her. The company invoked financial grounds and
factors in its field of production.
50. At the City Court's hearing on 27 January 1993 another of the
physicians treating the applicant, Dr. K., was in spite of his
objections heard as a witness called by the prosecution. In his
testimony he disclosed, inter alia, information pertaining to the
applicant.
51. In her opinion of 5 February 1993 the Deputy Parliamentary
Ombudsman considered that no measures were called for in response to
Chief Doctor L.'s complaint. She observed that domestic law had not
been violated. In the particular circumstances of the case she accepted
the City Court's balancing of, on the one hand, the public interest in
investigating crime and, on the other hand, the applicant's interest
in protecting confidential information pertaining to her.
52. Heard by the police as an expert on 6 February 1993, Dr. S.V.
confirmed that the applicant was known to be carrying HIV.
53. On 10 February 1993 the Public Prosecutor ordered the police to
hear the applicant's doctors as witnesses in the investigation of the
counts of attempted manslaughter of which X. had been suspected.
54. At the City Court's hearing on 3 March 1993 Chief Doctor L. was,
despite his renewed objections, again heard as a witness called by the
prosecution. Before testifying he read out the applicant's letter to
him dated 23 February 1993 which stated inter alia as follows:
(translation from Finnish)
"... The case concerns criminal charges against my husband
which are considered to outweigh a physician'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 testify [in that
capacity]. In your capacity as a physician 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 testify
against my husband ...
... I therefore request you to refer to these matters, when
you are being asked to testify in matters which concern
only me. It is my opinion that you should not be obliged to
give testimony in those matters and that the charges should
be dealt with in such a manner that I will not in any way
be forced to take part in the establishment of the [facts].
[I] am under no obligation to do so. ..."
55. In his testimony Chief Doctor L. again disclosed, inter alia,
information pertaining to the applicant.
56. On 8 and 9 March 1993 the police conducted a search at the
hospital where the applicant and X were occasionally being treated. All
records pertaining to the applicant were seized and photocopied and the
originals were returned. Copies of all records were annexed to the
pretrial investigation record concerning the charges for attempted
manslaughter committed by X.
57. The seized records comprised some thirty documents which
contained, inter alia, the following statements:
(translation from Finnish)
"...
25 September 1990: [The applicant has been] found to be
HIV-positive in 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, who she thinks is
[HIV]-negative. ...
5 June 1991: ... [The applicant's husband] is completely denying
that he could have an HIV-infection. ...
58. 7 June 1991: ... According to [the applicant], [her]
husband most likely also has an HIV infection but [he] has
not gone to be tested. ...
23 December 1991: ... [The applicant's husband] has not
gone to HIV-tests and is himself of the opinion that he is
not carrying the virus. ..."
59. Among the other material seized at the applicant's hospital were
test results from a large number of laboratory tests and examinations
concerning other issues than the existence of HIV in her blood,
information about her previous illnesses, her mental state as well as
a survey of her quality of life based on an assessment by herself.
60. On 10 March 1993 the City Court decided to include the copies of
the seized records in its documents. On the same day it heard Dr. S.V.
as an expert called by the prosecution.
61. At the City Court's hearing on 17 March 1993 another of the
physicians treating the applicant, Dr. V., was despite his objections
heard as a further witness called by the prosecution. He confirmed,
inter alia, that a blood test carried out in August 1990 had shown that
the applicant was carrying HIV. Despite their objections two further
physicians treating the applicant, Drs. S.-H. and S., were also heard
as witnesses called by the prosecution.
62. On 7 April 1993 Chief Doctor L. as well as Drs. K., V., S.-H. and
S. were heard as witnesses before the City Court. Also Dr. S.V. was now
heard as a witness. All had been called by the prosecution.
63. It appears that Dr. J.S. was also heard before the City Court in
his capacity as witness called by the prosecution.
64. On 9 April 1993 the leading daily "Helsingin Sanomat" reported
about the seizure of the applicant's hospital records under the
headline "The Prosecutor got the patient records of the wife of the
accused HIV rapist" (translation from Finnish). Both X.'s first name
and family name were stated in full. The applicant was referred to as
his wife.
65. On 23 April 1993 the applicant's employment contract was
terminated.
66. At a hearing before the City Court on 5 May 1993 the applicant's
psychiatrist, Dr. K.R., was despite his objections heard as a witness
called by the prosecution. Dr. S.V. was again heard as a witness. Also
two further physicians who had been treating the applicant, Drs. T. and
R., were heard as witnesses despite their objections.
67. At the City Court's hearing on 5 May 1993 the applicant agreed
to give testimony as a witness, stating that the matters concerning her
had already been dealt with by the City Court in other ways. She
testified, inter alia, that she had not received the HIV infection
from X.
68. All the hearings before the City Court took place behind closed
doors.
69. On 19 May 1993 the City Court convicted X. on, inter alia, three
counts of attempted manslaughter committed on 1 March, 31 August and
10 September 1992. It rejected, inter alia, the charges for attempted
manslaughter committed on 19 December 1991 but convicted X. of rape.
His aggregated sentence amounted to seven years' imprisonment.
70. The City Court made public the provisions applied in the case,
the operative part of the judgment and an abridged version of its
reasoning. Its full reasoning and the documents in the case were
ordered to be confidential for a period of ten years. Both the
complainants and X. had requested a longer period of confidentiality.
71. Appeals against the City Court's judgment were lodged with the
Court of Appeal (hovioikeus, hovrätten) of Helsinki by the
complainants, X. as well as the prosecution.
72. On 14 October 1993 the Court of Appeal held a hearing of the case
at which all appellants requested that the court documents should be
ordered to be kept confidential for more than ten years. A period of
thirty years was suggested.
73. On 10 December 1993 the Court of Appeal upheld the City Court's
judgment, inter alia, in so far as X. had been convicted on three
counts of attempted manslaughter. It also convicted X. on, inter alia,
two further counts of attempted manslaughter committed on
19 December 1991 and 6 September 1992. His aggregated sentence was
increased to over eleven years' imprisonment.
74. The Court of Appeal published its judgment as a whole. In so far
as it convicted X. on two further counts of attempted manslaughter, it
stated, inter alia, as follows:
(translation from Finnish)
"... 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 has denied having
undergone any HIV examination after he was 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 suffering from HIV
prior to having received the test results on 19 March 1992.
[X.] and [the applicant; mentioned by her first names and
family name] married on 12 April 1990. [The applicant] was,
on 31 August 1990, found to carry HIV. When heard as a
witness before the City Court, [she] stated having informed
X. of this finding at the end of 1990. When heard before
the Court of Appeal, X. stated that the applicant had
informed him about her disease already before he came to
Finland in January 1991. [He] has also stated that while
they were both living in Africa [the applicant] had been
suffering from some undefined disease. [She] had then ...
suspected that she might have become contaminated with HIV
but her infection had been discovered only after [she] had
returned to Finland.
75. 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 reason to suspect
that he [himself] had [also] been contaminated with HIV
through their sexual intercourse.
According to [Dr. J.S.], heard as a witness before the City
Court, [X.] must, on the basis of the symptoms of his
disease, be considered to have contracted HIV at least a
year before the blood test administered in March 1992. ...
According to [Dr. S.V.], the fever disease which, according
to [the applicant's] patient 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. Having regard to the fact that, when
contracting [her] fever disease 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
Dr. S.V.'s opinion concerning the primary HIV infection
credible. Taking into account the moment when [the
applicant] was found to be carrying HIV, the Court of
Appeal finds it likely that she obtained 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 in
December 1991. The fact that [he] nevertheless did not
undergo any HIV examinations other than those referred to
above shows that his attitude as regards the possibility
that others could be contaminated [with HIV] was at least
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 of his disease. In the
assessment of [X.'s] intent, his behaviour must therefore
be considered in the same manner as regards all counts of
attempted manslaughter with which he has been charged.
...
It has been shown in the case that, according to present
knowledge, an HIV-infection is lethal. [X.] has admitted
that he, already before arriving in Finland, had become
familiar with the character of [this] disease and with the
ways in which it could spread. Having also regard 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.] has been familiar with the
significant contamination risk and the lethal effects of
[the disease].
According to [Chief Doctor L.] and [Dr. S.V.], heard as
witnesses, the disease may spread already through one
sexual intercourse. ... X. must thus have realised that his
acts entailed, as a rather likely effect, subjecting [the
complainants] to a risk that they 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 contamination risk.
...
... [X.] must therefore be considered to have committed
attempted manslaughter also ... on 19 December 1991 and
6 September 1992. ..."
76. The Court of Appeal maintained the confidentiality period ordered
by the City Court as regards the court documents.
77. On 16 December 1993 the daily "Helsingin Sanomat" reported the
Court of Appeal's judgment, mentioning, inter alia, that the conviction
had been based on the witness statement of "X.'s Finnish wife" (the
name of X. being again stated in full). The article furthermore
referred to the Court of Appeal's finding that the applicant was also
a carrier of HIV. Other newspapers also reported the judgment and the
reasons therefor.
78. On 26 September 1994 the Supreme Court (korkein oikeus, högsta
domstolen) refused X. leave to appeal.
79. In a resolution of 11 October 1994 the Government Working Group
of Experts on Matters Relating to HIV ("the Expert Group") found it
justified that, in the case of someone suspected of having committed
a serious offence, the interests in ensuring respect for his or her
privacy, including confidential patient information, should outweigh
the interests of society in investigating the offence. The Expert Group
expressed its concern about the use in pretrial investigations and at
trials of confidential patient information pertaining to third parties,
who had not consented to the disclosure. It also expressed concern
about the insufficient attention which the courts were paying to the
interests of others in protecting such information when judgments were
rendered and court records were made available to the public. In the
Expert Group's view the situation was aggravated because of a third
party's lack of remedies against these kinds of disclosures.
80. The Expert Group concluded that the disclosure of confidential
material pertaining to third persons could dissuade potential
HIV-carriers from undergoing blood tests and HIV-carriers from seeking
care. It therefore proposed that the Act on Pre-trial Investigation and
the Act on Coercive Means of Criminal Investigation (pakkokeinolaki
450/87, tvångsmedelslag 450/87) be amended so as to specify the circle
of persons whose patient information could be used in the investigation
of an offence. If this circle were to include other than suspects, the
legislation should be amended so as to ensure that non-suspects be
heard and have effective remedies at their disposal prior to the
intended use of the information.
81. On 30 November 1994 the Social Insurance Institution
(kansaneläkelaitos, folkpensionsanstalten) considered that the
applicant had lost her ability to work and granted her a basic pension
as from 1 November 1994. On 1 December 1994 her insurance company
considered that she had, starting on 20 December 1993, lost her ability
to work and granted her a supplementary pension as from
1 November 1994. These decisions were based on a medical report
according to which the applicant was suffering from a deep and chronic
depression.
82. On 19 May 1995 the applicant requested the Supreme Court to
nullify or annul the Court of Appeal's judgment as far as the Court had
decided that the information and material pertaining to her should
become public in 2002.
83. In support of her request for a nullification of the judgment in
question the applicant submitted, inter alia, that the Court of Appeal
had committed a procedural error when not hearing her prior to deciding
on the question of whether to order the material concerning her state
of health to be kept and when considering the confidentiality period.
She stated that she was suffering inconvenience as a result of the
relevant part of the judgment.
84. In support of her request that the Court of Appeal's judgment be
annulled the applicant submitted, inter alia, that the judgment had
manifestly been based on an incorrect application of the law. She
invoked the 1992 Act on Patients' Status and Rights (laki 785/92
potilaan asemasta ja oikeuksista, lag 785/92 om patientens ställning
och rättigheter), according to which information in patient records
shall be kept confidential. It was true that such information could
nevertheless, under certain circumstances referred to in the 1987 Act
on Pretrial Investigation (esitutkintalaki 449/87, förundersökningslag
449/87), be conveyed to the courts and other authorities which are
entitled under the law to obtain such information. The courts were,
however, not entitled to order that this material should become public
within a certain period of time, at least not without first hearing the
applicant in order to obtain her possible consent. The applicant
therefore submitted that the City Court and the Court of Appeal had
applied domestic law incorrectly. She finally challenged the Court of
Appeal's order that, among other court documents, material concerning
her state of health should become available to the public in 2002. Such
a disclosure would neither be in accordance with the law nor be
necessary in a democratic society, as required by Article 8 of the
Convention. Should the Court of Appeal's judgment be nullified or
annulled, the applicant requested that the matter be referred back to
the Court of Appeal, where she could be heard.
85. On 22 May 1995 the applicant requested the Helsinki Police
Department to investigate from whom the police had received the
information that she was a carrier of HIV. This request was withdrawn
in June 1995.
86. On 1 September 1995 the Supreme Court decided not to nullify or
annul the Court of Appeal's judgment of 10 December 1993. The Supreme
Court found that the applicant had been informed of the judgment prior
to 21 December 1993. It further found that in her case a request for
nullification should have been lodged within six months from the
Supreme Court's decision of 26 September 1994 to refuse leave to
appeal. Since her request for a nullification had been lodged only on
23 May 1995, it was belated.
87. As regards the applicant's request for annulment of the Court of
Appeal's judgment, the Supreme Court considered that she did not have
such a standing in the relevant proceedings that she would be entitled
to lodge such a request.
B. Relevant domestic law and practice
1. The right to remain silent as a witness
88. Chapter 17, section 20 (1) of the Code of Judicial Procedure
(Oikeudenkäymiskaari, Rättegångsbalk) reads, in its relevant parts, as
follows:
(Finnish)
"Todistaja ei saa kieltäytyä todistamasta. Vastoin
tahtoansa älköön kuitenkaan todistamaan vaadittako:
... siltä, joka on ... avioliitossa ...jommankumman
asianosaisen kanssa;..."
(translation)
"A person may not refuse to serve as a witness. However,
the following shall not be required to serve as a witness
against their will:
... a person who is ... married ... to one of the
parties;..."
2. The right and obligation to observe secrecy as a witness
89. Chapter 17, section 23, subsection 1(3) of the same Code reads,
in its relevant parts, as follows:
(Finnish)
"Todistaa ei saa:
... lääkäri, ... siitä, mitä [hän] asemansa perusteella [on
saanut] tietää ja mitä asian laadun vuoksi on salassa
pidettävä, ellei se, jonka hyväksi vaitiolovelvollisuus on
säädetty, todistamiseen suostu;..."
(translation)
"The following may not serve as a witness:
... a physician, ..., as regards information which [he or
she has] obtained in [this] capacity and which shall be
kept secret because of the nature of the matter, unless the
person for whose benefit the obligation to preserve secrecy
has been stipulated agrees to [such a witness
testimony];..."
90. Chapter 17, section 23, subsection 3 of the same Code
nevertheless provides that a physician may be ordered to testify as a
witness, if the public prosecutor is charging someone with an offence
for which at least six years' imprisonment is prescribed (such as
manslaughter), or with having attempted to commit such an offence.
91. Section 27, subsection 1 of the 1987 Act on Pretrial
Investigation reads as follows:
(Finnish)
"Todistajan on tutuudenmukaisesti ja mitään salaamatta
ilmaistava, mitä hän tietää tutkittavasta asiasta. Jos hän
kuitenkin olisi oikeudenkäynnissä oikeutettu tai
velvollinen kieltäytymään todistamasta, ilmaisemasta
seikkaa tai vastaamasta kysymykseen, jos tutkittavana
olevasta rikoksesta nostettaisiin syyte, hän on oikeutettu
tai velvollinen siihen myös esitutkinnassa."
(translation)
"A witness shall truthfully and without concealing matters
state what he [or she] knows about the case under
investigation. However, if he would have the right or
obligation to refrain from serving as a witness, from
revealing a matter or from responding to a question
provided charges for the offence under investigation were
brought before a court, he shall have such a right or
obligation also in the pretrial investigation."
92. Section 27, subsection 2 of the same Act reads, in its relevant
part, as follows:
(Finnish)
"Oikeudenkäymiskaaren 17 luvun 23 §:n 1 momentissa
tarkoitettu henkilö, joka saman pykälän 3 momentin nojalla
voidaan velvoittaa todistamaan salassa pidettävästä
asiasta, on oikeutettu todistamaan tästä esitutkinnassa,
jos tutkittavana on rikos, josta säädetty ankarin
rangaistus on vähintään kuusi vuotta vankeutta. ..."
(translation)
"A person referred to in chapter 17, section 23,
subsection 1 of the Code of Judicial Procedure who, under
subsection 3 of the same section, may be obliged to testify
about a matter which should be kept secret, shall be
entitled to give witness testimony [already] in the
pretrial investigation, if the most severe punishment for
the offence under investigation is at least six years'
imprisonment. ..."
93. Section 28, subsection 1 of the same Act reads as follows:
(Finnish)
"Jos todistajalla ilmeisesti on tiedossaan seikka, joka on
tärkeä syyllisyyden selvittämiseksi, ja hän kieltäytyy sitä
ilmaisemasta, vaikka hän olisi siihen velvollinen tai
27 §:n 2 momentin mukaan oikeutettu, tuomioistuin saa
tutkinnanjohtajan pyynnöstä velvoittaa hänet ilmaisemaan
sen. Todistajankuulustelu voidaan näissä tapauksissa pitää
kokonaan tai osittain tuomioistuimessa."
(translation)
"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, subsection 2, entitled to do
so, the court may, at the request of the Chief
Investigating Officer, require [the witness] to reveal the
matter. In such cases the questioning of the witness may
take place in court, either entirely or in part."
94. A party to the pretrial investigation and his counsel may be
allowed to attend the proceedings in which a request by the Chief
Investigating Officer under section 28, subsection 1 is dealt with as
well as the actual hearing of the witness (section 28, subsection 2).
3. Seizure of confidential information
95. Chapter 4, section 2, subsection 2 of the 1987 Act on Coercive
Means of Criminal Investigation reads as follows:
(Finnish)
"Asiakirjaa ei saa takavarikoida todisteena käytettäväksi,
jos sen voidaan olettaa sisältävän sellaista, josta
oikeudenkäymiskaaren 17 luvun 23 §:ssä tarkoitettu henkilö
ei saa todistaa oikeudenkäynnissä ..., ja asiakirja on
edellä tarkoitetun henkilön tai sen hallussa, jonka hyväksi
vaitiolovelvollisuus on säädetty. Asiakirja saadaan
kuitenkin takavarikoida, jos edellä tarkoitettu henkilö
olisi esitutkinnassa oikeutettu tai velvollinen todistamaan
asiakirjaan sisältyvästä seikasta esitutkintalain 27 §:n 2
momentin nojalla."
(translation)
"A document shall not be seized for the purpose of being
used as evidence, if it may be presumed to contain
information in regard to which a person referred to in
chapter 17, section 23 of the Code of Judicial Procedure is
not allowed to give witness testimony at a trial ..., and
[provided that] the document is in the possession of this
person or the person for whose benefit the secrecy
obligation has been prescribed. A document may nevertheless
be seized if, under section 27, subsection 2 of the Act on
Pretrial Investigation, a person [referred to in chapter
17, section 23 of the Code of Judicial Procedure] would
have been entitled or obliged to testify in the pretrial
investigation about the matter contained in the document."
4. Protection of confidential information
96. According to the 1992 Act on Patients' Status and Rights which
entered into force on 1 May 1993, patient records shall 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 a society which has
been granted access thereto by law (section 13).
97. The 1987 Act on Personal Data Files (henkilörekisterilaki 471/87;
personregisterlag 471/87) contains provisions on the administration of
data files. Sensitive information concerning, for instance, someone's
state of health shall not be entered in such a file (section 6). An
exception is, however, made for, among others, health care authorities
and officials (section 7). If the Data Protection Ombudsman (tieto-
suojavaltuutettu, dataombudsmannen) finds out that personal data are,
inter alia, being disclosed contrary to the law, an attempt shall be
made to have the file keeper change its practice voluntarily. If
necessary, the matter shall be brought before the Data Protection Board
(tietosuojalautakunta, datasekretessnämnden) or the Public Prosecutor
(section 34). The Board may, on pain of an administrative fine
(uhkasakko, vite), order that the file keeper correct its wrongdoing.
It may also prohibit further data disclosure or order that the keeping
of personal data files must cease (section 35, subsections 2 and 3 and
section 36). An appeal against an above-mentioned decision of the Board
lies with the Supreme Administrative Court (korkein hallinto-oikeus,
högsta förvaltningsdomstolen)(section 38).
98. The keeper of a personal data file is liable to compensate the
financial loss and, provided it is not of a minor character, the
suffering caused to a person by the use or disclosure of file
information contrary to the Act on Personal Data Files (section 42).
5. The obligation to report a contagious disease
99. According to the 1986 Act on Contagious Diseases (tartuntatauti-
smittsamma sjukdomar), a person who is suffering from a disease such
as infection with HIV or who is found to possibly have contracted such
a disease shall, on request, inform the treating physician about the
likely contamination source (section 22, subsection 2 of the Act as
well as section 2 of the Decree).
6. Publicity of documents
100. According to the 1951 Act on the Publicity of Official Documents
(laki 83/51 yleisten asiakirjain julkisuudesta; lag 83/51 om allmänna
handlingars offentlighet), official documents are public (section 1).
They include, inter alia, documents drawn up and issued by an authority
as well as documents submitted to an authority and which are still in
that authority's possession (section 2, subsection 1). A pretrial
investigation record shall, however, not be public until the matter has
been brought before a court or the police investigation has been closed
without charges having been brought (section 4).
101. If a document to be presented to a court contains information
which a person is not, according to, inter alia, chapter 17, sections
20 and 23 of the Code of Judicial Procedure, obliged or entitled to
submit or information which shall otherwise be kept confidential, only
an excerpt of the document shall be submitted to the court, thus
excluding such information (chapter 17, section 11b of the Code of
Judicial Procedure, as amended by Act no. 1052/91, and section 12, as
amended by Act no. 571/48).
102. Everyone shall have access to a public, official document
(section 6, as amended by Act no. 739/88). An exception is made, inter
alia, for medical and similar reports, which are accessible to the
public only with the consent of the person they relate to (section 17).
Even in the absence of such consent a party to, for instance, criminal
proceedings shall have access to such a document, if it could affect
the outcome of the case (section 19, subsection 1, as amended by Act
no. 601/82). Access may, however, be refused to a document forming part
of a pretrial record which has not yet been completed, provided access
could jeopardise the investigation (subsection 3).
103. The material accumulated during a pretrial investigation shall
be collected in an investigation record, 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, the existence of material collected but not included therein
(section 40 of the Act on Pretrial Investigation).
7. Publicity of court proceedings
104. The publicity of court proceedings is governed by the 1984 Act
on the Publicity of Court Proceedings (laki 945/84 oikeudenkäynnin
julkisuudesta, lag 945/84 om offentlighet vid rättegång). The court
may, at the request of a party or for another weighty reason, decide
to hold an oral hearing either entirely or partly in the absence of the
public (section 5). If an oral hearing has been entirely or partly held
in the absence of the public or if, during such a hearing, a document
or information which should be kept confidential has been submitted,
the court may decide that the documents in the case be kept
confidential for up to forty years. The operative part of the judgment
as well as the legal provisions invoked shall always be made public
(section 9).
105. A separate appeal against a decision concerning the publicity of
proceedings is not allowed (section 11). The decision must thus be
challenged in an ordinary appeal lodged by a party to the proceedings.
8. Disclosure of confidential information
106. According to the 1889 Penal Code (rikoslaki 39/1889, strafflag
39/1889), the disclosure of confidential information by a civil servant
or an employee of the public is a criminal offence (chapter 40,
extensively amended).
107. According to the Constitution Act (Suomen hallitusmuoto 94/19,
Regeringsform för Finland 94/19), anyone who has suffered an
infringement of his rights, or damage, through an illegal act or
negligence on the part of a civil servant, is entitled to demand that
the civil servant be convicted and held liable for damages, or to
report him for the purpose of having charges brought against him
(section 93, subsection 2). Under the Tort Liability Act
may also be instituted against the State for actions taken by civil
servants (chapters 3 and 4).
108. A person involved in a pending pretrial investigation may be
prohibited, on pain of a fine or maximum six months' imprisonment, from
revealing information concerning others which was not previously known
to him or her and which relates to the investigation. Such a
prohibition may be imposed, if a disclosure of such information to
others in the course of the investigation could jeopardise the
investigation or cause harm or inconvenience to a party to the
investigation or others. A more severe punishment may be applicable,
if the disclosure meets the description of another offence (section 48
of the Act on Pretrial Investigation).
109. According to the 1951 Act on the Publicity of Official Documents,
parties or their representatives are not allowed to disclose to others,
who are not involved in the proceedings, confidential material which
has been made available to them in their capacity as parties
(section 19a).
9. Nullification and annulment
110. According to the Code of Judicial Procedure, a judgment which has
acquired legal force may be nullified (poistaa, undanröja) by a court
of appeal or the Supreme Court on account of a procedural error if,
inter alia, a person who has not been heard suffers prejudice as a
result of the judgment. If a nullification is sought on these grounds,
the request shall be lodged within six months from the date when the
person was informed of the judgment in question (chapter 31, section
1 (2) and section 2, both as amended by Act no. 109/60).
111. A judgment which has acquired legal force may also be annulled
(purkaa, återbryta) by the Supreme Court. An annulment in a civil case
as well as for the defendant's benefit in a criminal case may be
sought, inter alia, on the grounds that the judgment is manifestly
based on wrong application of the law (chapter 31, section 7 (4) and
section 8 of the Code of Judicial Procedure, as amended by Act
no. 109/60).
10. Case-law of the Supreme Court
112. In what appears to be the first case of its kind in Finland the
Supreme Court, in 1993, convicted a person, S., of grossly negligent
manslaughter, having found that he had had sexual intercourse with
another person, K., without informing him that he was carrying HIV
(judgment No. 1993:92). K. had later died as a result of the HIV
infection obtained from S. The City Court had decided to publish only
the legal provisions applied, the operative part of the judgment and
a summary of its reasons. In the published judgments rendered by the
Court of Appeal and the Supreme Court the names of the witnesses heard
had been replaced by a letter. All courts ordered that the documents
in their case-files should remain confidential for a period of ten
years from the City Court's judgment.
III. OPINION OF THE COMMISSION
A. Complaints declared admissible
113. The Commission has declared admissible the applicant's complaints
under Articles 8 and 13 (Art. 8, 13) of the Convention in their
entirety.
B. Points at issue
114. The issues to be determined are:
- whether there has been a violation of Article 8 (Art. 8) 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
115. 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 or morals, or for the protection of the rights and
freedoms of others."
(i) The hearing of the applicant's doctors and psychiatrist as
witnesses
116. The applicant complains that the hearing of her doctors and
psychiatrist as witnesses in the course of the criminal proceedings
against X. violated her right under Article 8 (Art. 8) to respect for
her private and family life, in so far as confidential information
concerning her and X. obtained in the course of her treatment was
disclosed thereby.
117. The applicant submits that the particular manner in which her
doctors and psychiatrist were heard was "not in accordance with the
law" within the meaning of Article 8 para. 2 (Art. 8-2), given that
domestic law on this point was not sufficiently foreseeable. To begin
with, their obligation to observe the secrecy of information which they
had obtained while performing their profession could, according to the
Code of Judicial Procedure, be ignored only after charges had been
brought against X. for attempted manslaughter. However, on the basis
of what appears to be an excessively wide interpretation of the Act on
Pretrial Investigation some of the applicant's doctors were heard as
witnesses already in the pre-trial investigation. 118. Secondly, the applicant submits that domestic law did not clearly
specify whether her doctors and psychiatrist could be heard as
witnesses not only in regard to information concerning X. but also in
regard to information pertaining to herself. As a result of an
excessively wide interpretation of the Code of Judicial Procedure, her
doctors and psychiatrist therefore had to disclose intimate details
concerning her state of health which, according to the Act on Patients'
Rights and Status, should have remained confidential forever.
119. Thirdly, the applicant submits that the particular manner in
which her doctors and psychiatrist were heard as witnesses circumvented
her right not to testify against her husband. It was only after her
HIV-status and other information had been disclosed by other means, and
because of that disclosure, that she felt compelled to waive that
right.
120. The applicant furthermore argues that the particular manner in
which her doctors and psychiatrist were heard as witnesses pursued none
of the legitimate aims enumerated in Article 8 para. 2 (Art. 8-2). Even
assuming that such an aim existed, their actual hearing was not
"necessary in a democratic society" in pursuance of such an aim. The
authorities were able to investigate the offences sufficiently well
without having to ignore an obligation to observe the secrecy of
information relating to the applicant. The City Court was under no
obligation to accept all evidence presented by the prosecution. The
offences which X. had been suspected of did not constitute a threat to
society as a whole.
121. The applicant could accept the hearing of her doctors and
psychiatrist, had it been limited to the question whether patient
records pertaining to certain unnamed persons contained information
showing that X. knew or ought to have suspected that he was carrying
HIV at the relevant time. Instead the applicant's rights were blatantly
disregarded throughout the proceedings, starting with the disclosure
of her HIV-status during the police questioning of complainant M. on
5 March 1992. Given that her HIV-status was formally disclosed by Chief
Doctor L. only in August 1992, it must therefore have been illegally
leaked to the police by health care staff, for whose actions the State
is responsible under the Convention. Although this leak constituted a
criminal offence, the police made no investigation thereof. Instead it
used the information for the purpose of investigating whether M. had
also been the victim of attempted manslaughter by X.
122. The applicant submits that the so-called "HIV rape cases" had
attracted considerable public interest and that one of the complainants
had stated in the pre-trial investigation that she wished that the case
would get "as much publicity as possible". Finnish law allegedly did
not prevent the complainants from leaking information emanating from
the documents in the case or disclosed to them at the trial. Particular
care should therefore have been taken by the authorities dealing with
the case. A lesser intrusion in the applicant's privacy and family life
would not have jeopardised the rights of the parties to the criminal
proceedings. Nor would this have been the result of measures taken for
the protection of her identity.
123. The applicant submits, moreover, that the particular manner in
which her doctors and psychiatrist were heard could dissuade
HIV-carriers from seeking treatment from professional health care
staff. She finds it particularly aggravating that the psychiatrist
treating her in the course of the trial was heard as witness and even
after her patient records had already been presented as evidence.
Moreover, under the Act on Contagious Diseases a person who has
received an HIV-infection must report to the authorities the identity
of the likely contamination source. Given that such information could
be used as evidence and even be made public, persons suffering from HIV
are no longer likely to report the source of their disease, at least
if such information could entail a risk that his or her partner might
be charged with having spread the disease.
124. The applicant finally points out that X. had not been charged
solely with attempted manslaughter but also with rape of all
complainants. Whether or not he could at all be convicted did not
therefore depend on the evidence obtained by way of the particular
manner in which the applicant's doctors and psychiatrist were heard as
witnesses. Moreover, as regards the three counts of attempted
manslaughter which had taken place after X. had been HIV-tested, it was
clear that he had already become aware of his HIV-infection. Because
of the rules governing aggregated prison sentences the sentence which
would have been imposed on X., had he been convicted on three rather
than on five counts of attempted manslaughter, would hardly have
differed from the sentence actually imposed. Furthermore, under
domestic law compensation for mental suffering could not be awarded to
the complainants for attempted manslaughter, which was indeed the case
for a rape offence. X.'s conviction on three rather than on five counts
of attempted manslaughter would therefore not have affected the
possibility for the complainants of obtaining damages from him.
125. The Government submit that there has been no violation of
Article 8 (Art. 8) in this case. Generally speaking, any interference
with the applicant's rights under that provision was justified under
Article 8 para. 2 (Art. 8-2), given that the measures complained of
were carried out in accordance with the law and pursued the legitimate
aims of preventing disorder or crime, protecting the health or morals
as well as protecting the rights and freedoms of others. The measures
taken by the authorities were not disproportionate to those aims and
were therefore necessary in a democratic society.
126. Turning to the applicant's specific complaints, the Government
argue that the hearing of her doctors and psychiatrist as witnesses
took place "in accordance with the law". Reference is made to
chapter 17, section 23, subsection 1(3) of the Code of Judicial
Procedure, section 2, subsection 2 of the Act on Pretrial Investigation
as well as the Deputy Ombudsman's opinion of 5 February 1993. The
Government are also of the opinion that the applicant's witness
testimony was given voluntarily. Therefore the hearing of her doctors
and psychiatrist as witnesses did not circumvent her right not to
testify against X.
127. With reference to the State's margin of appreciation, the
Government consider that the hearing of the applicant's doctors and
psychiatrist was proportionate to the previously mentioned legitimate
aims, given that X. had been suspected of and later charged with, inter
alia, several counts of the very serious offence of attempted
manslaughter. The results of X.'s blood test in March 1992 showed that
he had most likely been carrying HIV for a considerable period of time.
Although the measures taken by the authorities interfered with the
applicant's rights, the prosecution had no other means of evidence at
its disposal for the purpose of establishing whether X. had known of
his HIV-infection at the time of the sexual offences committed prior
to his blood test in March 1992. The interference with the applicant's
rights enabled the prosecution to show that she had been suffering from
an HIV infection at the time of those offences and that she had made
X. aware of this. In the assessment of whether X. should be found
guilty of two further counts of attempted manslaughter this information
was of crucial importance.
(ii) The investigatory measures, the inclusion of the
applicant's patient records in the court documents and
their future availability to the public
128. The applicant furthermore complains that the investigatory
measures, the inclusion of her entire patient records in the court
documents as well as the Court of Appeal's decision concerning their
future availability to the public constituted further violations of her
right under Article 8 (Art. 8) to respect for her private and family
life. The search and seizure were allegedly not "in accordance with the
law", since they were aimed at obtaining information which she had up
to then refused to convey as a witness. They therefore effectively
circumvented her right not to testify against X. In this respect the
relevant domestic law was not sufficiently precise, since it was not
foreseeable that confidential information pertaining to the applicant
could be used for the purposes of the criminal proceedings against X.
and even before X. had been charged with the relevant counts of
attempted manslaughter.
129. The applicant also submits that the measures in question pursued
none of the legitimate aims enumerated in Article 8 para. 2 (Art. 8-2).
Even assuming that such an aim existed, the measures were not
proportionate to any such aim. The seizure was of a wholesale and
indiscriminate character, comprising tens of pages of documents
concerning intimate details about the applicant's sexual life and other
sensitive private matters. This material was already at the outset
entirely irrelevant to the assessment of X.'s guilt. None of the seized
records contained any information about the sexual relations between
the applicant and X., nor could they have offered any evidence
permitting the establishment of X.'s guilt in regard to the two counts
of suspected attempted manslaughter committed before he had been
informed of the results of his blood test in March 1992. At any rate,
it was not necessary for the police to include the applicant's entire
patient records in its pretrial investigation record without ensuring
that irrelevant information was not disclosed in the ensuing criminal
proceedings. Information enabling the applicant to be identified could,
for instance, have been deleted or distorted and information about her
mental state could have been deleted or abridged.
130. The applicant furthermore submits that already the investigatory
measures had enormous consequences for her private life, since they
resulted in copies of her entire patient records being passed on to the
Public Prosecutor, to the courts, to the complainants, their counsel
and staff with the ultimate effect that her HIV-status was disclosed
to the press and the public, including her former colleagues, friends
and neighbours. The applicant also stopped seeking care at the hospital
which was searched and now feels obliged to keep the identity of her
present doctor to herself.
131. The applicant also points out that the City Court was under no
obligation to accept her entire patient records as evidence in the
trial against X., at least not by including them in its documents in
their unabridged form. In any case, once all her records had been
seized, included in the pretrial record and thereby made available to
the parties to the criminal proceedings against X., there was no
justification under Article 8 para. 2 (Art. 8-2) for the Court of
Appeal's order that the documents should become available to the public
in 2002.
132. The Government submit that Article 8 (Art. 8) has not been
violated on any of the above points. The search and seizure were based
on the Act on Coercive Means of Criminal Investigation and were thus
"in accordance with the law". They had the same legitimate aims as the
hearing of the applicant's doctors and psychiatrist. The inclusion of
the applicant's entire patient records in the pretrial investigation
record was also "in accordance with the law" and had the same
legitimate aims as previously referred to. This particular measure was
necessary in order to ensure that the complainants would be informed
about all evidence obtained during the investigation of the offences
of which X. had been suspected. As a pretrial investigation should be
conducted objectively, it would not have been justified to exclude part
of the seized material from the investigation record. The competent
courts were, moreover, entitled to be informed of all material
potentially relevant to the charges against X.
133. As regards the proportionality of the investigatory measures, the
Government refer to their arguments in regard to the necessity of the
hearing of the applicant's doctors and psychiatrist. Moreover, given
that the applicant was married to X., she was by no means a complete
outsider in the criminal proceedings against him. Nor can the
Government take any responsibility for the press reports concerning the
search and seizure or the alleged further effects of those reports.
134. The Government finally submit that Article 8 (Art. 8) has not
been violated on account of the inclusion of the applicant's entire
patient records in the court documents and their future availability
to the public. Any pretrial investigation material which has been
accepted by the courts as evidence should as a rule be available to the
public. In order to ensure this publicity of court proceedings, as
guaranteed by Article 6 para. 1 (Art. 6-1) of the Convention, it is not
justified that court documents concerning a person's health should
always be declared confidential. The courts' decisions to declare the
applicant's patient records confidential only for a period of ten years
were based on common practice and after a balancing of the private and
public interests in the matter.
(iii)The Court of Appeal's disclosure of, inter alia, the
applicant's status as a carrier of HIV
135. The applicant complains that the Court of Appeal's disclosure of
her identity, status as a carrier of HIV and the assumed source of her
contamination with HIV constituted a separate violation of her right
under Article 8 (Art. 8) to respect for her private and family life.
Even assuming that the disclosure took place "in accordance with the
law" and served a legitimate aim, it was not proportionate to any such
aim.
136. On the last point, the applicant accepts that it is in the
general interest that the courts publicly clarify what kind of
behaviour by an HIV-carrier constitutes a criminal offence such as
attempted manslaughter. She refers, however, to the Supreme Court's
judgment in a similar case (No. 1993:92) in which the witnesses'
identities were not disclosed.
137. The applicant also underlines that, although domestic law
required that the operative provisions of the judgment and the legal
provisions be published, it nevertheless allowed for the reasons
adduced in support of the judgment to be kept confidential for up to
forty years. In the alternative, the Court of Appeal could have merely
published a summary of its reasoning, thereby protecting the extremely
sensitive information relating to her. Alternatively, it could have
abridged its published reasoning in necessary parts.
138. The applicant finally underlines that her and X.'s family name
is extremely rare in Finland, where population records are accessible
to the public. The disclosure at issue therefore had enormous
consequences for her private and professional life.
139. The Government again submit that Article 8 (Art. 8) has not been
violated. They concede that it is appropriate court procedure in cases
dealing with an extremely sensitive private matter to avoid referring
to the person concerned in a way which would permit his or her
identification by outsiders. This exercise of caution presupposes,
however, that the clarity of the judgment is not jeopardised. The Court
of Appeal's reasoning in the judgment in question required that the
applicant be referred to as the wife of the accused X. The additional
disclosure of her name was therefore of no significance.
140. The Government also refer to the requirement in Article 6 para. 1
(Art. 6-1) of the Convention that court proceedings should, in
principle, be public. They consider that the exceptions in that
provision allowing for the exclusion of the press and public apply only
to actual court proceedings and not to court judgments.
(iv) The alleged lack of safeguards
141. The applicant furthermore complains that, with the exception of
the Court of Appeal's confidentiality order, all events and decisions
complained of have already produced lasting damaging effects which can
no longer be removed by any remedy. Not being a party to the criminal
proceedings against X. she could not effectively object to the intended
hearing of her doctors and psychiatrist, the intended seizure of her
entire records nor against the intended inclusion of her hospital
records in the pre-trial record and the court documents. Nor was she
heard before the courts considered the period of confidentiality which
was to apply to the documents included in their files or before the
full reasoning of the Court of Appeal's judgment was published. She
submits that she has never been formally notified of the Court of
Appeal's confidentiality period order, let alone of any remedy at her
disposal.
142. The Government submit that the applicant could have instituted
criminal proceedings or civil proceedings for damages against the civil
servants possibly responsible for the disclosure of information about
her state of health. Reference is made to the Constitution Act, the
Penal Code and the Tort Liability Act. The applicant could also have
lodged complaints with the Parliamentary Ombudsman or the Chancellor
of Justice, both being competent to bring charges against civil
servants. Reference is finally made to the remedies prescribed by the
1987 Act on Personal Data Files.
(v) Remaining aspects
143. Under Article 8 (Art. 8) the applicant finally complains of a
lack of respect for her private and family life in that the State did
not prevent newspapers from reporting about the criminal proceedings
against X. in a manner disclosing, among other things, that she is a
carrier of HIV and in that it did not prevent her employer from
subsequently terminating her employment contract. It is alleged that
these further violations of Article 8 (Art. 8) are the result of
previously occurring decisions and events of which she has also
complained under the same provision.
(vi) The Commission's considerations
144. Although the applicant has alleged separate and distinct
violations of Article 8 (Art. 8) of the Convention, the Commission
considers it appropriate to examine the complaints under that provision
as a whole.
145. The Commission finds it undisputed that the case involves an
interference with the applicant's right to respect for her private life
within the meaning of Article 8 para. 1 (Art. 8-1) of the Convention.
Even though the applicant is the wife of X. and was to this extent
personally affected by the criminal proceedings against her husband,
she was not a party to those proceedings. Moreover, she enjoyed under
Finnish law an immunity from being compelled to testify in the
proceedings. Nevertheless, in consequence of the various orders and
decisions of the Finnish authorities,
(i) the applicant's doctors, including her psychiatrist, were
required, as part of the investigation proceedings and/or in the
trial, to testify as to matters of the utmost sensitivity
concerning the applicant's health and intimate private life;
(ii) all the applicant's medical records were seized and incorporated
wholesale into the investigation file, thereby becoming
available to all involved in the criminal proceedings against
her husband, including the complainants;
(iii)although the criminal proceedings themselves were conducted in
private, the trial record, including the applicant's medical
records and the evidence of her doctors, are to become publicly
accessible in the year 2002; and
(iv) the applicant has not only been identified by name in the
published judgment of the Court of Appeal but the judgment
(which has been reported in the Finnish press) also disclosed
details of her medical condition.
146. The Commission recalls that in order to be justified under the
terms of Article 8 para. 2 (Art. 8-2) an interference with a right
guaranteed by Article 8 para. 1 (Art. 8-2) must satisfy three
conditions: it must be "in accordance with the law", it must pursue one
or more of the legitimate aims enumerated in Article 8 para. 2 (Art. 8-
2) and it must be "necessary in a democratic society" for that or those
legitimate aims. The notion of necessity implies that the interference
corresponds to a pressing social need and, in particular, requires that
it be proportionate to the legitimate aim pursued. Regard must be had
to the margin of appreciation left to the Contracting States (cf. Eur.
Court H.R., Olsson judgment of 24 March 1988, Series A no. 130,
pp. 31-32, para. 67). The Commission cannot confine itself to
considering the relevant decisions in isolation but must look at them
in the light of the case as a whole. It must determine whether the
reasons adduced to justify the interference at issue were "relevant and
sufficient" (cf. the above-mentioned Olsson judgment, p. 32, para. 68).
Finally, certain procedural requirements are implicit in Article 8
(Art. 8) to the extent that a party or someone in a similar position
must have been involved in the decision-making process, seen as a
whole, to a degree sufficient to provide requisite protection of his
or her interests (cf., mutatis mutandis, e.g., Eur. Court H.R., W. v.
the United Kingdom judgment of 8 July 1987, Series A no. 121, pp. 28-
29, paras. 63-65; cf. also the above-mentioned Olsson judgment, p. 33,
para. 71).
147. The Commission finds that the invasion of the applicant's
private life was so serious that exceptionally strong reasons were
required to justify it. This is reinforced by the more general
consideration that the risk of disclosure of confidential information
on HIV-carriers is likely to have a deterrent effect on such carriers
from seeking the necessary treatment and help from doctors and health
care professionals.
148. The Commission can accept that the various measures were "in
accordance with the law", that is, that they were in compliance with
domestic law and satisfied the requirements of accessibility and
foreseeability.
149. The measures, individually and collectively, can furthermore be
regarded as serving legitimate aims for the purposes of paragraph 2 of
Article 8 (Art. 8) of the Convention, namely the prevention of crime
and the protection of the rights and freedoms of others, in particular
the complainants in the criminal proceedings against X.
150. The central issue in the case is therefore whether the measures
were necessary to achieve those aims and, more particularly, whether
they were in all the circumstances proportionate, having regard to the
gravity of the interference.
151. It is submitted by the Government that the measures were
necessary to achieve the legitimate aims pursued. As to the obtaining
and use at trial of information concerning the applicant's private
life, it is claimed that this evidence was essential if the charge of
attempted manslaughter was to be made out in respect of two of the rape
victims, R. (19 December 1991) and M. (1 March 1992). It is further
claimed that the measures were proportionate, having regard to the
steps taken to ensure the confidentiality of the information by holding
all the hearings in camera and by restricting access to the court files
for a period of 10 years. As to the identification of the applicant and
the disclosure of the fact that she was HIV-positive in the judgment
of the Court of Appeal, it is submitted by the Government that,
consistently with the requirement of Article 6 para. 1 (Art. 6-1) of
the Convention, the Court of Appeal had no alternative but to publish
its judgment and to include in the published judgment the essential
reasoning for the conclusion that X. had been guilty of attempted
manslaughter.
152. The Commission does not find it necessary to reach a general
conclusion on the basis of the particular facts of this case as to
whether there is a pressing social need to create exceptions to the
principle that patient-doctor consultations and treatment should be
treated as confidential in the interests of the individual concerned
and the interests of society at large that there be full disclosure and
trust in such relationships. Even assuming that there could be
circumstances justifying the invasion of the confidential, private
relationship in question, any measures taken must be proportionate to
the legitimate aim in question - in the present case, the aim of
protecting the public and vindicating the victims.
153. In the present case the Commission notes the serious offences
with which X. had been charged and the relevant circumstance, namely
whether he had, before obtaining the results from his blood test, known
that he was carrying HIV or at least had had reason to suspect this.
The Commission accepts that this information was necessary for the
conviction of X. of attempted manslaughter and not merely of rape in
so far as the offences committed on 19 December 1991 and 1 March 1992
are concerned. In view of this, interference with the applicant's
private life may have been justified by weighty public and private
interests militating in favour of pursuing the investigation concerning
attempted manslaughter.
154. However, even assuming that the interference was called for,
there were insufficient safeguards to ensure that the invasion of the
applicant's privacy was reduced to the minimum and that there was no
unnecessary public disclosure of intimate information concerning her
health. Nor did the authorities take effective measures so as to ensure
that the applicant's privacy be respected as much as possible.
155. In particular, the applicant was given no prior warning of the
fact that information was to be sought about her medical history from
Dr. L. or that her medical records were to be seized and copies of the
records annexed to the pretrial investigation. She was accordingly not
in a position to object to these measures or to argue for safeguards
for her privacy. Even assuming that, as a person protected under the
Act on Patients' Status and Rights, the applicant could have objected
to the various investigatory measures, the efficacy of any such
safeguard was substantially reduced by the fact that the applicant was
not properly informed in advance of the decision to seize the records
or of the court hearings during which it was intended to hear her
doctors. This rendered it particularly important that the applicant's
interests were fully considered by the authorities before the measures
were ordered or implemented and that all possible steps were taken to
reduce to a minimum the interference with her private life. The steps
taken by the authorities in this regard were not adequate.
156. As to the seizure of the applicant's medical records, while it
may have been unreasonable to require the police officers carrying out
the search to exclude from the records particularly sensitive seized
and copied material, domestic law would have entitled the police to
exclude certain material from the investigation record passed on to the
Public Prosecutor and eventually to the complainants and the courts.
The Commission finds no indication that the police at all considered
whether this possibility should be used in order to protect at least
part of the information emanating from the applicant's records.
157. In addition to the inclusion of the applicant's medical records
in the pre-trial investigation file, it appears that testimony about
the applicant's medical history was sought, despite objections, from
a number of doctors who had treated the applicant: on 12 August 1992,
and again on 3 March 1993, Chief Doctor L. was required to disclose
information relating to the applicant; on 27 January 1993 another
doctor who had treated the applicant, Dr. K., disclosed information
relating to the applicant; on 6 February 1993 Dr. S.V., who was heard
by the police as an expert, confirmed that the applicant was known to
be carrying HIV; on 17 March 1993 Dr. V., another physician who treated
the applicant, confirmed that a blood test carried out in August 1990
had shown that the applicant was carrying HIV and two further
physicians who were treating the applicant, Dr. S.-H. and Dr. S. were
also called by the prosecution; on 5 May 1993 the applicant's
psychiatrist, Dr. K.R., was called by the prosecution, as were two
further physicians who had been treating the applicant, Drs. T. and R.
158. It is unclear why it was necessary to examine each of these
doctors concerning the applicant's medical history; nor is it clear
what, if any, effort was made to limit the questioning of the doctors
in such a way as to minimise the interference with the applicant's
private life.
159. It is true that some protection was afforded to the applicant by
the fact that the proceedings were throughout conducted in camera and
by the order restricting public access to the records of the
proceedings for a period of years. However, the value of this
protection was substantially diminished by the fact that the
confidentiality period was restricted to 10 years and by the fact that
the applicant's HIV condition was disclosed in the Court of Appeal's
judgment.
160. As to the former point, it is clear that the courts were not
only empowered to restrict access to the court records for up to forty
years but that eventually all parties requested that the
confidentiality period be extended beyond ten years.
161. It is argued by the Government that the Court's decision to
restrict the period to ten years was based on common practice and after
balancing the private and public interests involved. However, even
assuming that at least some of the previously taken measures could be
deemed to be a justified interference with the applicant's private
life, the Commission considers that there were special features of the
present case which demanded an additional period of protection to
safeguard her interests. Because of the sensational nature of the facts
of the case, it had inevitably attracted considerable media and public
interest. It is at least possible, if not likely, that it will attract
further publicity when the court records are disclosed in the year
2002, unless in the meantime measures are taken to remedy the
situation.
162. As to the judgment of the Court of Appeal, while, as a matter of
domestic law, there was a need to publish the operative part of the
Court's judgment as well as the legal provisions applied, this could
have been achieved without the necessity of identifying the applicant
or disclosing any personal medical information concerning her. There
is nothing to indicate that the exclusion of such material from the
published judgment would have been incompatible with the requirements
of Article 6 (Art. 6) of the Convention. Moreover, there is nothing to
suggest that the clarity or coherence of the judgment would thereby
have suffered in a decisive manner. In this regard, it is noteworthy
that the City Court made public only the operative part of the judgment
and an abridged version of its reasoning, while ordering that its full
reasoning should remain confidential for a period of ten years.
163. The Commission furthermore observes that the applicant had no
effective possibility of either opposing or challenging the disclosure
of personal details about her in the judgment of the Court of Appeal
or the publication of the judgment in its unabridged form.
164. Concerning the confidentiality period order by the City Court
which was upheld by the Court of Appeal, the position appears to be
somewhat different. The applicant requested the Supreme Court to
nullify the Court of Appeal's order on the grounds that the Court had
committed a procedural error in not hearing the applicant prior to
deciding not to extend the period beyond the year 2002 or to annul it
with a view to affecting the material outcome of the issue she raised.
The Supreme Court held that the applicant had no standing to apply for
annulment of the order of the Court of Appeal and rejected her claim
to nullify the order not on the grounds of her lack of standing but on
the grounds that she had lodged her application out of time.
165. Although the applicant might therefore in principle have been
entitled to standing for the purposes of requesting a nullification of
the confidentiality order, this does not mean that a nullification
would, in all the circumstances of the case, have been an adequate
safeguard. Apart from the fact that the decision of the Supreme Court
leaves open the question whether the applicant would have had standing
to ask for nullification, the applicant was in any case not a party to
the criminal proceedings against X. and there was no express provision
entitling her as a person affected by the order to be heard by the
Court of Appeal. Those who were parties to the proceedings, namely the
prosecution, the complainants and X. himself, had all been heard and
had unsuccessfully argued before the Court of Appeal for an extension
of the period of confidentiality for the entire record of the
proceedings, including those parts which affected the applicant. In any
case, a nullification could only have had a bearing on part of the
applicant's grievances.
166. Summing up, the Commission must take account of the difficulties
faced by the national authorities in striking a proper balance between
the interests of the proper administration of justice and the interests
of the applicant. Nevertheless, having regard to the acutely sensitive
and intimate nature of the information in question and the general
interest in maintaining confidentiality in the patient-doctor
relationship, the Commission cannot but conclude that the authorities
failed adequately to safeguard the applicant's right to respect for her
private life.
167. In these circumstances the Commission need not examine the
remaining aspects of the complaints under Article 8 (Art. 8) of the
Convention as referred to in (v) above.
CONCLUSION
168. The Commission concludes, unanimously, that in the present case
there has been a violation of Article 8 (Art. 8) of the Convention.
D. As regards Article 13 (Art. 13) of the Convention
169. Article 13 (Art. 13) of the Convention reads as follows:
"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."
170. The applicant complains that she had - and has - no effective
remedy at her disposal in order to challenge the violations of
Article 8 (Art. 8) which allegedly occurred. With the exception of the
Court of Appeal's confidentiality order, all events and decisions
complained of under Article 8 (Art. 8) have already produced lasting
damaging effects which can no longer be removed by any remedy. Not
being a party to the criminal proceedings against X. she could not
effectively object to the intended hearing of her doctors and
psychiatrist, the intended seizure of her entire records nor against
the intended inclusion of her hospital records in the pre-trial record
and the court documents. Nor was she heard before the courts considered
the period of confidentiality which was to apply to the documents
included in their files or before the full reasoning of the Court of
Appeal's judgment was published.
171. The Government submit that there has been no violation of
Article 13 (Art. 13), since the applicant had no arguable claim of a
violation of her rights under Article 8 (Art. 8) of the Convention.
Even assuming that she had such a claim, the Government refer to the
aggregate of remedies presented in respect of the complaints under
Article 8 (Art. 8).
172. Having regard to its finding in regard to the complaints under
Article 8 (Art. 8) the Convention, including the procedural aspects to
be considered under that provision, the Commission finds that it is not
necessary to examine whether there has also been a violation of
Article 13 (Art. 13) of the Convention.
CONCLUSION
173. The Commission concludes, unanimously, that it is not necessary
to examine whether there has also been a violation of Article 13
(Art. 13) of the Convention.
E. Recapitulation
174. The Commission concludes, unanimously, that in the present case
there has been a violation of Article 8 (Art. 8) of the Convention
(para. 166 above).
175. The Commission concludes, unanimously, that it is not necessary
to examine whether there has also been a violation of Article 13
(Art. 13) of the Convention (para. 171 above).
Secretary to the Commission President of the Commission
(H.C. KRÜGER) (S. TRECHSEL)