PARTLY CONCURRING AND PARTLY DISSENTING OPINION OF JUDGE RYSSDAL, JOINED BY JUDGES GÖLCÜKLÜ AND JAMBREK

1. I am unable to share the majority's view that Article 6 § 1 of the Convention was not applicable in the present case. However, I consider that the provision was complied with and therefore concur with the majority's conclusion that Article 6 § 1 has not been violated.

2. As regards the question whether an arguable claim existed, I attach weight to the fact, also mentioned in the judgment, that a duty of confidentiality applied to the kind of data in issue and was designed to protect the patient's interests in non-disclosure.

It is true that this rule of confidentiality did not apply with regard to information in the clinic's possession which would be of importance to the Office's determination of a compensation claim under the Insurance Act and that the clinic, as the imparting authority, enjoyed a considerable discretion in assessing what data would be relevant in this respect.

However, that discretion was not unfettered and was significantly more circumscribed than that in issue in the case of Masson and Van Zon v. the Netherlands (judgment of 28 September 1995, Series A no. 327-A, pp. 19–20, §§ 49–52), referred to in the majority's reasoning. In that case, the issue was whether a suspect, who was subsequently acquitted, had a right to compensation under certain provisions of Netherlands law for damage resulting from detention. A decisive factor leading to the Court's finding that no actual right to compensation was recognised under the national law was that the State had no obligation to pay even if the conditions set out in the relevant provision were fulfilled; an award was contingent on the competent court being of the opinion “that reasons in equity” exist therefor (ibid., § 51).

In contrast, the scope of the discretion in issue in this case was defined with greater precision. According to the relevant national provisions, a disclosure of medical data by the clinic to the Office was permissible only in so far as the information was of importance to the application of the Insurance Act; were the disclosure to exceed those limits it would constitute a breach of the clinic's obligation to maintain the confidentiality of the information.

In my view, the applicant could therefore arguably maintain that the national law recognised a right for her to challenge the disclosure of the data communicated by the clinic to the Office.

3. Moreover, the applicant disputed the relevance of certain data communicated by the clinic to the Office for the latter's examination of her compensation claim. There was thus a serious disagreement between the applicant and the authorities capable of raising issues going to the lawfulness under Swedish law of the clinic's decision to disclose the medical records. That decision was moreover directly decisive for the applicant's right to maintain the confidentiality of the records at the clinic. Accordingly, there was a dispute over a “right”.

4. In addition, I am of the opinion that the right in issue, which concerned the protection of the confidentiality of the applicant's personal medical data, was civil in character.

5. As to the question of compliance, the remedies discussed under Article 13 (see paragraphs 22 and 55 of the judgment) in my view also satisfied the requirements of Article 6 § 1. By bringing civil and/or criminal proceedings before the Swedish courts against the relevant personnel at the clinic, the applicant would have been able to obtain a review, addressing both questions of fact and of law, of the merits of her claim that the clinic had communicated to the Office medical information about her which had not been relevant to the determination of her compensation claim under the Insurance Act. The fact that the applicant could not bring proceedings before the disclosure of the information to the Office did not in my opinion impair the very essence of the “right to a court”.

6. In the light of the foregoing, I find no violation of Article 6 § 1 of the Convention in the present case.

7. I agree that there has been no violation of Article 13 of the Convention.

[1] . This summary by the registry does not bind the Court.

[2] Notes by the Registrar

. The case is numbered 74/1996/693/885. The first number is the case's position on the list of cases referred to the Court in the relevant year (second number). The last two numbers indicate the case's position on the list of cases referred to the Court since its creation and on the list of the corresponding originating applications to the Commission.

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

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