Communicated on 8 March 2016

FIFTH SECTION

Application no. 11642/11 Aleksander SOKOLOW against Germany lodged on 17 February 2011

STATEMENT OF FACTS

The applicant, Mr Aleksander Sokolow , is a German national who was born in 1946 and lives in Bitburg . He is represented before the Court by Mr F. Obst , a lawyer practising in Koblenz.

A. The circumstances of the case

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

1. The background to the case

On 8 November 2006, upon an arrest warrant issued by the Trier District Court, the applicant was arrested and placed in Trier prison. During his detention, the applicant suffered from various health problems, including hyper-intensive heart disease with a functional disorder, permanent atrial fibrillation, depression and the after-effects of a stroke. He also suffered a heart attack. The applicant received medical treatment throughout his detention.

On 13 June 2007 he was released from prison.

On 29 June 2007 the applicant asked the authorities of Trier prison for access to his medical file in order to prepare an action for damages and to forward the file to his treating physician. He initially received copies of 23 pages containing medical results, and upon a second request received a further 26 copied pages of medical results.

On 18 July 2007 the applicant asked for a copy of the whole medical file, but received only the treatment sheet by the treating physician, without any indication as to whether the medical file in its entireness or at least all medical results had now been submitted.

2. The proceedings at issue

On 22 July 2008 the Trier Regional Court, having consulted the applicant ’ s prison medical file, dismissed the applicant ’ s request to receive a copy of his complete medical file. It held that, according to section 185 of the Execution of Sentences Act ( Strafvollzuggesetz , see relevant domestic law and practice, below), the applicant had no right to full access to his medical file.

Regarding the general principles, the Regional Court held that a right of access to records could only be granted in cases where the right to be informed of the content of the records restricted the legal interests of the data subject and special reasons required full access to records. The right of access to records was subsidiary to the right to information and, in general, limited to objective medical results. It did not include the treating doctor ’ s personal impressions and written conclusions. The fundamental rights of the data subject needed to be weighed against the fundamental rights of the treating physician.

The court could not verify whether, besides the 49 copied pages already submitted, the applicant ’ s medical file contained further medical results, as the applicant did not submit the copies which had been sent to him by the Trier prison authorities. Furthermore, the applicant failed to demonstrate why his right of access to his medical records should include any personal written remarks of the treating physician. It further explained that such remarks served to inform the prison director. For reasons of security and order within prison, the detainee concerned did not, as a rule, have a right to disclosure of the contents of such internal notes.

On 22 August 2008 the applicant appealed against the Regional Court ’ s decision. He argued that he had a right to access to all information concerning the anamnesis, the diagnosis and therapeutic measures regarding his person. He did not know whether or not he had received all medical results, and the prison authorities had not given any assurances in so far. Therefore, it was impossible for him to demonstrate which parts of his medical record had not been submitted as he had no means of knowing their content, or whether his record contained only the 49 copied pages submitted. Furthermore, the requirement to justify a request for access to his medical record infringed his fundamental right to self-determination in the sphere of information ( Recht auf informationelle Selbstbestimmung ).

On 20 October 2008 the Koblenz Court of Appeal dismissed the applicant ’ s appeal. It reiterated that a prisoner on remand might have a right of access to his medical record if his right to information did not suffice to protect his legal interests. The applicant ’ s rights were partly taken into account by the provision of 49 copied pages from his medical record. The wording of section 185 of the Execution of Sentences Act clearly showed that access to records could only be granted when the data subject sufficiently justified the request. The Court of Appeal reiterated that some courts demanded that the prisoner on remand demonstrate in detail that the information submitted was insufficient or incomplete and show why he could not pursue his rights without full access to his records.

The Court of Appeal held that these principles were applicable in cases like the present one where parts of the medical file had already been forwarded and the data subject requested access to the remainder of his record. The applicant had to explain why the copies submitted did not enable him to pursue his legal interests. Although the applicant ’ s fundamental right to self-determination in the sphere of information provided, in general, a right of access to records, this right was limited by section 185 of the Execution of Sentences Act.

The applicant failed to justify his request to be provided with copies of his whole medical file. In so far as he allegedly needed to present them to the Heidelberg health authorities and to prepare an action for damages, he did not demonstrate that the copies submitted were insufficient for this purpose and he therefore failed to prove a legal interest.

As the applicant had failed to sufficiently justify his request the court need not to decide on the question whether the right to access to information covered the whole medical file or only the objective medical records.

On 25 November 2008 the applicant lodged a constitutional complaint with the Federal Constitutional Court. He complained that his fundamental right to self-determination in the sphere of information had been infringed because he had been denied access to his complete medical file. The Regional Court had failed to weigh his interest against that of the prison authorities in a fair manner, bearing in mind that he had never asked for the parts of the medical file containing the treating doctor ’ s personal impressions or remarks on inappropriate behaviour . His lack of knowledge of the file ’ s content meant that he was not in a position to motivate his request for access and he should therefore not have been obliged to justify his request.

On 9 August 2010 the Federal Constitutional Court declined to consider the applicant ’ s constitutional complaint withou t providing reasons (file no. 2 BvR 2403/08). The decision was served on the applicant ’ s counsel on 19 August 2010.

B. Relevant domestic law and practice

1. Relevant domestic law

Section 185 of the Execution of Sentences Act provides that the person concerned shall, by virtue of section 19 of the Federal Data Protection Act ( Bundesdatenschutzgesetz ), receive information, and access to records where the information is insufficient to assert his legal interests and he needs to inspect the records for this purpose.

Section 19 of the Federal Data Protection Act provides, as far as relevant, that the person concerned shall, on request, be provided with information on stored data concerning him, including any reference in the data to its origin, the recipients or categories of recipients to whom the data are transmitted, and the purpose of storage. The request should specify the type of personal data on which information is to be provided. Section 19 § 4 holds that information shall not be provided if this would be prejudicial to the proper performance of the duties of the controller , would impair public safety or order or otherwise be detrimental to the Federation or a Land or if the data, or the fact that the data is being stored, must be kept secret pursuant to a legal provision or by virtue of its nature, in particular on account of an overriding, justified interest by a third party , and for this reason the interest of the data subject in the provision of information must take second place.

2. Relevant domestic practice

The Federal Constitutional Court held, in its decision of 9 January 2006 (file no. 2 BvR 443/02), that a prisoner, who was detained in a psychiatric hospital, had a right of access to his whole medical file. The necessary weighing of the fundamental rights of the data subject against the fundamental rights of the treating physician could not limit the right of access to objective medical results. Such a far-reaching protection of the treating doctor ’ s rights was not needed, as the treating doctor ’ s personal impressions and written conclusions might be of importance for the prisoner ’ s treatment. Furthermore, the treating doctor could control the medical file ’ s content by deciding what to write down or not. On the other hand the data subject ’ s fundamental right of access to his full medical file was very weighty as he had no other means to control whether his fundamental rights with regard to medical treatment and release were sufficiently protected. The imbalance of power needed to be taken into account, as he was not able to choose his doctor freely and therefore was in a vulnerable position ( grundrechtliche Gefährdungslage ).

The Celle Court of Appeal held, in its decision of 30 April 2010 (file no. 1 Ws 142/10), that a prisoner on remand had a right of access to his medical records when he needed to prepare an action for damages with regard to medical malpractice. Section 185 of the Execution of Sentences Act required that a person justify his request for access to his medical records. When assessing whether this requirement was complied with, this person ’ s his fundamental right to self-determination in the sphere of information had to be taken into account. In a case such as the one before that court, which was caracterised by the imbalance of power and the fact that a prisoner on remand cannot freely choose his doctor, the prisoner ’ s fundamental right carried considerable weight. Consequently, the mere allegation that the person concerned was ill and needed the medical records in order to prepare an action for damages on the ground of medical malpractice, was sufficient to justify his request for full access to his records.

COMPLAINT

The applicant complains that the domestic courts ’ refusal to provide him with a copy of his entire prison medical records violated his right to private life under Article 8 of the Convention.

QUESTIONS TO THE PARTIES

Having regard to the Court ’ s case-law (see, inter alia, K.H. and Others v. Slovakia , no. 32881/04, ECHR 2009 (extracts) ), did the respondent State comply with its positive obligation under Article 8 of the Convention to protect the applicant ’ s right to respect for his private life?

( i ) In particular, did the domestic authorities provide the applicant with a copy of his whole medical file?

(ii) If so, did they indicate to the applicant that he was provided with a copy of his whole medical file?

(iii) Furthermore, were the reasons invoked by the domestic authorities for a refusal to submit further copies of items contained in his prison medical file sufficiently compelling to outweigh the applicant ’ s interest in obtaining copies of his medical file?