PARTLY DISSENTING OPINION OF JUDGE DE MEYER

(Translation)

I.   The Court accepted that the applicant ’ s right to respect for her private and family life was not infringed by either the orders requiring her doctors and her psychiatrist to give evidence or the seizure of her medical records and their inclusion in the investigation file.

It held that these measures were justified in order to determine when X, her husband, had learnt or had had reason to believe that he was HIV-positive for the purpose of establishing whether the offences he was accused of having committed before 19 March 1992 should be classified as attempted manslaughter, like those he had committed after that date, or only as sexual assault.

In my opinion, whatever the requirements of criminal proceedings may be, considerations of that order do not justify disclosing confidential information arising out of the doctor/patient relationship or the documents relating to it.

II.   By indicating that the ten-year "limitation on confidentiality" decided on by the Finnish courts in this case was too short, the Court appears to imply that public access to medical data might be permissible after a sufficient length of time has elapsed.

Without prejudice to what might be acceptable with regard to other information in criminal case files, I consider that medical data in such files must remain confidential indefinitely.

The interest in ensuring that court proceedings are public is not sufficient to justify disclosure of confidential data, even after many years have elapsed.

III.   In the present judgment the Court once again relies on the national authorities ’ "margin of appreciation".

I believe that it is high time for the Court to banish that concept from its reasoning. It has already delayed too long in abandoning this hackneyed phrase and recanting the relativism it implies.

It is possible to envisage a margin of appreciation in certain domains. It is, for example, entirely natural for a criminal court to determine sentence - within the range of penalties laid down by the legislature - according to its assessment of the seriousness of the case.

But where human rights are concerned, there is no room for a margin of appreciation which would enable the States to decide what is acceptable and what is not.

On that subject the boundary not to be overstepped must be as clear and precise as possible. It is for the Court, not each State individually, to decide that issue, and the Court ’ s views must apply to everyone within the jurisdiction of each State.

The empty phrases concerning the State ’ s margin of appreciation - repeated in the Court ’ s judgments for too long already - are unnecessary circumlocutions, serving only to indicate abstrusely that the States may do anything the Court does not consider incompatible with human rights.

Such terminology, as wrong in principle as it is pointless in practice, should be abandoned without delay.

[1] The case is numbered 9/1996/627/811. 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.

[2] Rules of Court B, which came into force on 2 October 1994, apply to all cases concerning the States bound by Protocol No. 9 (P9).

[3] 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-I), but a copy of the Commission's report is obtainable from the registry.