Published on 4 October 2021

FIRST SECTION

Application no. 10685/18 A.G.-Åš. against Poland lodged on 16 February 2018 communicated on 15 September 2021

STATEMENT OF FACTS

The applicant, Ms A. G.-Ś., is a Polish national, who was born in 1960 and lives in Brzezie. She is represented before the Court by Mr Ł. Stępkowski, a lawyer practising in Wrocław.

The facts of the case, as submitted by the applicant, may be summarised as follows.

In 2008, the applicant’s husband, A.Ś., was charged with participation in an organised criminal group (charges related to large scale fraud and money laundering). During the investigation the applicant was heard as a witness. On 5 March 2009 the Cracow Regional Prosecutor gave an order requesting the Małopolska branch of the National Health Fund (“NHF”) to provide information whether A.Ś. and his relatives, including the applicant, had used medical services in Poland during the last five years, that is as of 1 January 2004. The request did not contain any reasons.

On 5 and 6 March 2009, the NHF sent the prosecutor detailed information concerning the applicant’s medical history. In particular, the following was provided: a list of medical services provided to the applicant, her personal identification number (PESEL), types and dates of various treatments, list of medical prescriptions including the dosage and a list of medical practitioners who treated the applicant.

The applicant had only become aware of the order in 2012. On 16 August 2021 she lodged a criminal complaint with the Cracow Regional Prosecutor. She alleged that the prosecution services had exceeded their powers by disclosing her medical records. The prosecution office replied that her complaint lacked any basis since the medical information had been essential for the criminal investigation as it had concerned the suspects.

Meanwhile, the case file of the investigation (concerning nearly thirty suspects), which included the applicant’s medical records, was made available to the parties and in other court proceedings.

On 8 March 2014 the applicant lodged a claim for the protection of her personal rights relying on Articles 23 and 24 of the Civil Code. She asked the court to award her damages on account of the breach of her personal rights.

On 18 December 2014 the Cracow Regional Court dismissed her claim. The court found that the applicant’s personal rights (dignity and right to privacy) had not been breached on account of the prosecutor’s actions. At the same time, it found that the prosecutor’s actions had been legal.

The applicant appealed relying on Article 8 of the Convention.

On 21 November 2015 the Cracow Court of Appeal set aside the first instance judgment and ordered the Regional Prosecutor to issue a statement of apology. The court referred to Article 8 of the Convention and the Court’s case-law.

The Cracow Regional Prosecutor represented by the General Attorney’s office ( Prokuratoria Generalna ) lodged a cassation appeal with the Supreme Court on 21 January 2016.

On 22 March 2017 the Supreme Court reversed the second-instance judgment. The court found that the prosecutor’s order had not been unlawful and therefore the applicant’s personal rights had not been breached.

Article 226 of the Code of Criminal Procedure as applicable at the material time, provided:

“In matters concerning the use of documents containing State, official or professional secrets as evidence in criminal proceedings, the prohibitions and limitations set forth in Articles 178-181 shall apply accordingly. In the preparatory proceedings the decision whether documents regarding medical secrets could be used as evidence is made by a prosecutor.”

COMPLAINTS

The applicant complains under Articles 8 and 13 of the Convention that the collection of her confidential medical information by the prosecutor’s office, in the context of a criminal investigation against her husband in which she was heard as a witness, constituted “fishing” for information and amounted to a breach of her right to private life. In that connection she complains that she was not informed of the decision ordering the disclosure of the medical data, she could not appeal it at the material time, and she learned about it only several years later.

QUESTIONS TO THE PARTIES

1. Has there been an interference with the applicants’ right to respect for her private life, within the meaning of Article 8 § 1 of the Convention, on account of the disclosure of her medical records to the investigation authorities? If so, was that interference in accordance with the law and necessary in terms of Article 8 § 2 (see Avilkina and Others v. Russia , no. 1585/09, §§ 44-46, 6 June 2013; Radu v. the Republic of Moldova , no. 50073/07, §§ 27-32, 15 April 2014 and Y.Y. v. Russia , no. 40378/06, §§ 52-59, 23 February 2016)?

2. Did the applicant have at her disposal an effective domestic remedy for her complaint under Article 8 to the Convention, as required by Article 13 of the Convention?