CONCURRING OPINION OF JUDGE DEDOV

I voted in favour of finding a violation of Article 8 of the Convention. However, I cannot agree with the majority on the approach and reasoning it adopted to substantiate that finding.

This approach is not consistent with the Court ’ s practice in similar cases. For example, in the case of Avilkina and Others v. Russia (no. 1585/09, 6 June 2013), unlike in the present case, the Court did not stop at the lawfulness stage of the proportionality test, although the confidential medical information had been provided to the prosecutor, who has much more general functions in the sphere of public health than the Russian Ministry of Healthcare, which is responsible for creating an effective health ‑ care system in the country.

I n the Avilkina case the Court took note of the applicants ’ argument that the legislative provisions in force at the material time governing cases where disclosure of confidential medical information was permissible were worded in rather general terms and might have been open to extensive interpretation. The Court concluded that these questions were closely related to the broader issue of whether the interference was necessary in a democratic society. In the light of its further assessment of the proportionality of the interference, the Court did not find it necessary to decide whether the wording of Article 61 met the “quality of law” requirements of Article 8 § 2 of the Convention. The Government submitted that the disclosure of medical files had pursued the legitimate aim of protecting public health and that it had been necessary in order to avoid the risk of death or serious harm to a patient ’ s health.

In the present case i t is obvious that the disclosure of the medical data without the applicant ’ s consent pursued legitimate aims in terms of protecting public health. There were two aims: the first related to the exception provided for by Article 61 in cases where there are grounds to believe that an individual has been harmed as a result of unlawful actions; the second was to verify the effectiveness of the health-care system in response to the complaint by the applicant ’ s mother. However, the Russian authorities had a duty to limit the scope of the requested information to the children ’ s state of health. Instead, the commission of the maternity hospital also disclosed to the Committee (and later to the Ministry) very intimate and sensitive information regarding the medical history of the applicant herself (see paragraph 13 of the judgment). That information was not relevant to the death of the twin and therefore it was not necessary in a democratic society to disclose that information without the applicant ’ s consent.

I must add that the Committee ’ s report (see paragraph 10 of the judgment ) was not helpful in terms of achieving the second legitimate aim, namely to create an effective health-care system, with particular reference to the capacity of children ’ s hospitals to provide intensive therapy to all babies with serious health problems without any waiting lists. The Committee concluded that an early transfer to hospital did not guarantee survival or a favourable outcome. This conclusion turns the whole report into a very valuable document for a museum of totalitarianism: even where there is a 20% possibility of survival, a totalitarian system would not make efforts to save a life, because a life is not important; likewise, it would not encourage the improvement of the health-care system or innovation.

DISSENTING OPINION OF JUDGE PASTOR VILANOVA

(Translation)

The Court found a violation of Article 8 of the Convention by a very substantial majority.

To my regret, I cannot subscribe to that conclusion for the following reasons.

1. The Court observed that the applicant ’ s medical data had been disclosed without her consent and, in particular, that this had been done unlawfully. Accordingly, it found that the State had infringed the applicant ’ s right to private life, in breach of Article 8 of the Convention.

In paragraph 54 of the judgment the Court found that the new legal grounds raised by the Russian Government before it were not admissible as they had not been raised before the domestic courts. It is true that the applicant never consented to the granting of access to her medical records. Nevertheless, paragraph 4 (5) of Article 61 of the Basic Principles of Public Health Law permits the disclosure of medical information without the patient ’ s prior consent where there are grounds to believe that an individual has been harmed as a result of unlawful actions (see paragraph 26 of the judgment). It is precisely this legal ground, which appears relevant in the present case (suspicious death of a premature new-born baby in hospital), which the Chamber dismissed automatically and without giving reasons. It should be pointed out that the administrative investigation ordered by the Ministry of Health was opened because of the telegrams sent to the Russian authorities by the applicant ’ s own mother, who complained, among other things, of medical negligence on a large scale (see paragraphs 7 and 8).

However, according to paragraph 18 of the judgment, the District Court held that the applicant ’ s rights under Article 61 of the Basic Principles of Public Health Law had not been breached. This argument by the Government had thus been the subject of adversarial argument before the domestic courts. It strikes me as too rigid an approach to find, as the Court did in paragraph 54 of the judgment, that the Government were estopped from raising that argument, especially since a number of precedents appear to argue in favour of the opposite conclusion (see Stögmüller v. Austria , 10 November 1969, § 16, Series A no. 9; Sahin v. Germany [GC], no. 30943/96, § 43, ECHR 2003 ‑ VIII; and A. and Others v. the United Kingdom [GC], no. 3455/05, § 187, ECHR 2009).

Personally, I voted against finding a violation of Article 8 of the Convention because this complaint, which was possibly decisive, was not subjected to detailed scrutiny by the Chamber. For reasons of consistency I could not vote on the award of just satisfaction under Article 41 of the Convention.

2. I would add that the procedural limb of Article 2 of the Convention and paragraph 4 (5) of Article 61 of the Basic Principles of Public Health Law, taken together, appear to provide a legitimate basis for the Government ’ s actions. Having received a notitia criminis concerning the death of a particularly vulnerable person (a new-born baby), the authorities had a duty to investigate (see Avilkina and Others v. Russia , no. 1585/09, § 45, 6 June 2013). They appointed experts whose independence and technical competence were not disputed at any stage. It seems clear to me that a thorough investigation necessitated access to the applicant ’ s medical records and that, in the interests of transparency and proper administration, the final report had to be notified to the authority which had ordered the investigation and the person who had instigated the proceedings, namely the applicant ’ s mother (whose daughter, curiously, did not appear to blame her for her actions). The report was not made generally available. Moreover, it is not disputed that the doctors making up the Committee and the Ministry team had a duty of professional confidentiality in accordance with paragraph 7.2 of Recommendation No. R (97) 5 to the member States on the protection of medical data. These elements afforded, at least prima facie, effective and sufficient safeguards against abuse.

3. Lastly, the applicant did not explain in what sense the information contained in her medical records (especially that of a gynaecological nature) was not relevant for the purposes of the administrative investigation (see M.S. v. Sweden , 27 August 1997, § 42, Reports of Judgments and Decisions 1997 ‑ IV).