CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 28 février 1995

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }                          AS TO THE ADMISSIBILITY OF                         Application No. 22009/93                       by Z.                       against Finland           The European Commission of Human Rights (First Chamber) sitting in private on 28 February 1995, the following members being present:              Mr.    C.L. ROZAKIS, President            Mrs.   J. LIDDY            MM.    A.S. GÖZÜBÜYÜK                  A. WEITZEL                  M.P. PELLONPÄÄ                  B. CONFORTI                  N. BRATZA                  I. BÉKÉS                  E. KONSTANTINOV                  G. RESS              Mrs.   M.F. BUQUICCHIO, Secretary to the Chamber         Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;         Having regard to the application introduced on 21 May 1993 by Z. against Finland and registered on 8 June 1993 under file No. 22009/93;         Having regard to:   -      the reports provided for in Rule 47 of the Rules of Procedure of       the Commission;   -      the observations submitted by the respondent Government on       20 April 1994 and the observations in reply submitted by the       applicant on 1 June 1994;   -      the additional observations submitted by the Government on 8 and       20 February 1995 and by the applicant on 23 February 1995;         Having deliberated;         Decides as follows:   THE FACTS         The applicant is a Finnish citizen, born in 1964 and resident in Helsinki. She is represented by Mr. Markku Fredman, a lawyer practising in Helsinki.         The facts of the case, as submitted by the parties, may be summarised as follows.   Particular circumstances of the case         The applicant and her husband, X., a foreign citizen resident in Finland, are both carrying the human immunodeficiency virus (HIV).         On 10 March 1992 the City Court (raastuvanoikeus, rådstuvurätten) of Helsinki convicted X. of rape of another woman and sentenced him to a conditional prison sentence.         Before the City Court of Helsinki X. was subsequently charged with four further sexual offences committed as from December 1991. In the pretrial investigation the police had detected that X. was carrying HIV. The police had then attempted to obtain information from the applicant as to when X. had been made aware of his disease. The applicant, however, had refused to testify as a witness, referring to her right to remain silent in her capacity as X.'s spouse.         In the course of the second criminal proceedings the prosecutor also charged X. with attempted manslaughter, claiming that X. had had forced sexual intercourse with a woman, already knowing at the time that he was carrying HIV. X. himself stated that he had been informed of the disease only on 19 March 1992 following an examination at the hospital where he was being treated.         On 27 May 1992 the prosecutor requested the police to hear the Chief Doctor of the hospital as well as other doctors who had possibly been treating X. The doctors were to be heard either as experts or witnesses. The intention was to obtain information as to when X. had been informed that he was carrying HIV.         At the time of the police investigation the applicant was also being treated at the same hospital, the Chief Doctor being in charge of the treatment of both her and X.         On 20 July 1992 the police requested the City Court to order the Chief Doctor to disclose information enabling it to be established when X. had learned that he was carrying HIV. Such an order was issued by the City Court on 12 August 1992.         At the City Court's hearing on the same day, held behind closed doors, the Chief Doctor testified about X.'s status as a carrier of HIV. He also disclosed information pertaining to the applicant. This information had been omitted from X.'s hospital records which had previously been obtained by the police.         The City Court's file from the hearing was ordered to be kept confidential until the determination of any possible charges against X. or until the close of the pretrial investigation, should no charges be brought.         On 23 September 1992 the Chief Doctor lodged a petition with the Parliamentary Ombudsman (eduskunnan oikeusasiamies, riksdagens justitieombudsman), complaining of his obligation to testify as a witness.         In her opinion of 5 February 1993 the Deputy Parliamentary Ombudsman (eduskunnan apulaisoikeusasiamies, riksdagens biträdande justitieombudsman) considered that no measures were called for. She observed that domestic law had not been breached. In the particular circumstances of the case she accepted the City Court's balancing of, on the one hand, the public interest in investigating crime and, on the other hand, the applicant's interest in not having information in confidential records pertaining to her disclosed.         On 8 and 9 March 1993 the police conducted a search at the hospital treating the applicant and X. The records pertaining to the applicant were seized and photocopied. The original records were subsequently returned to the hospital. Copies of all records were annexed to the pretrial record concerning the charges against X.         On 7 April 1993 the Chief Doctor and other doctors treating the applicant were heard as witnesses before the City Court, again sitting behind closed doors.         On 9 April 1993 a newspaper reported about the seizure of the applicant's hospital records. The applicant was referred to as "the wife of X". (The first name and family name of X. was stated in full.) Soon thereafter the applicant's employment contract was terminated.         On 5 May 1993 the applicant was heard as a witness before the City Court, sitting behind closed doors. Her doctors were again heard as witnesses as well as her psychiatrist.         On 19 May 1993 the City Court convicted X. of, inter alia, attempted manslaughter, as he had had forced sexual intercourse with four women knowing that he was carrying HIV. He was sentenced to seven years' imprisonment. The judgment and the documents in the case were ordered to be confidential for a period of ten years.         On 10 December 1993 the Court of Appeal (hovioikeus, hovrätten) of Helsinki convicted the applicant of rape and attempted manslaughter, both offences committed on 19 December 1991 with a single act, of attempted manslaughter and fornication offending personal freedom, both offences committed on 1 March 1992 with a single act, and of attempted manslaughter committed on 6 September 1992. The Court of Appeal upheld the City Court's judgment in so far as X. had been convicted for certain further offences. His aggregated sentence was increased to over eleven years' imprisonment.         In its judgment the Court of Appeal noted, inter alia, that X. and the applicant had married on 12 April 1990 and that, on 31 August 1990, the applicant had been found to carry HIV. When heard as a witness before the City Court, she had stated having informed X. about her disease at the end of 1990. When heard before the Court of Appeal, X. had stated having been informed by the applicant about her disease before January 1991. The Court of Appeal further noted the statement by one of the doctors heard as a witness before the City Court. According to her, X. must have been contaminated at the latest in March 1991, judging from the symptoms of his disease. The Court of Appeal concluded that X. must have known about his disease at the latest in December 1991.         The Court of Appeal published its judgment as a whole. X.'s counsel had requested that the documents in the case be kept confidential for more than ten years, arguing that this was also in the applicant's interest. The complainants (the victims of the sexual offences of which X. had been convicted by the City Court) had also requested a longer period of confidentiality. The Court of Appeal decided not to extend the period during which the documents in the case are to be kept confidential. As regards the complainants' identities, the judgment only mentions their first names and the first letters of their surnames. X. and the applicant are referred to by their full names. The judgment further states that the finding of HIV in the applicant's blood dates back to 31 August 1990.         According to the applicant, press reports about the Court of Appeal's judgment mentioned that the conviction had been based on the witness statement of "X.'s Finnish wife." (The name of X. was again stated in full.)         On 26 September 1994 the Supreme Court (korkein oikeus, högsta domstolen) refused X. leave to appeal.   Relevant domestic law         1.    Third parties' right or obligation to remain silent in            criminal proceedings         In principle, no one can refuse to make a witness statement before a court. Such a statement may, however, not be demanded from, inter alia, the spouse of one of the parties to the proceedings against the will of the spouse (chapter 17, section 20 (1) of the Code of Judicial Procedure (Oikeudenkäymiskaari, Rättegångsbalk)).         In the absence of consent given by a person in favour of whom an obligation to remain silent is prescribed, a witness statement shall not be demanded from, inter alia, a doctor in so far as it would concern what he has learned in his position as a doctor and which, due to the nature of the information, should be kept confidential (chapter 17, section 23, subsection 1(3)). A doctor may, nevertheless, be ordered to testify as a witness if the public prosecutor is charging someone with an offence for which at least six years' imprisonment is prescribed, or with having attempted to commit such an offence (subsection 3).         The 1987 Act on Pretrial Investigation (esitutkintalaki 449/87, förundersökningslag 449/87) prescribes to the spouse and doctor of a suspect a right or an obligation to remain silent also in the course of a pretrial investigation prior to any charges having been brought (section 27, subsection 1). However, if the doctor could be ordered to testify as a witness once charges have been brought and provided these concern an offence for which at least six years' imprisonment is prescribed, he may choose to testify already in the pretrial investigation (subsection 2).         If it is evident that a person has information of importance to the investigation of a suspect's guilt but refuses to disclose it, although he is obliged to do so or, in accordance with section 27, subsection 2, may choose to do so, the court may order him to disclose the information at the request of the police. The hearing may be held before the court (section 28, subsection 1). The party to the pretrial investigation and his counsel may be allowed to attend the proceedings in which the request is dealt with as well as the actual hearing of the witness (subsection 2).         2.    Seizure of documents         A document may not be seized for the purpose of being used as evidence if, inter alia, it can be presumed to contain information which a person referred to in chapter 17, section 23 of the Code of the Judicial Procedure is not allowed to reveal as a witness before a court. A further requirement is that the document is in the possession of that person or the person in favour of whom the obligation to remain silent is prescribed. However, if the person would have the right or obligation to testify as a witness in a pretrial investigation regarding the contents of the document, in accordance with section 27, subsection 2 of the Act on Pretrial Investigation, the document may be seized nevertheless (chapter 4, section 2, subsection 2 of the Coercive Criminal Investigation Means Act (pakkokeinolaki 450/87, tvångsmedels- lag 450/87)).         3.   Publicity of documents and court proceedings         According to the 1951 Act on the Publicity of Official Documents (laki 83/51 yleisten asiakirjain julkisuudesta; lag 83/51 om allmänna handlingars offentlighet), official documents are public (section 1). They include, inter alia, documents drawn up and issued by an authority as well as documents submitted to an authority and which are still in that authority's possession (section 2, subsection 1). A pretrial record shall not be public until the matter has been brought before a court or the police investigation has been closed without charges having been brought (section 4).         Everyone shall have access to a public, official document (section 6, as amended by Act no. 739/88). An exception is made, inter alia, for medical and similar reports, which are accessible to the public only following the consent of the person they relate to (section 17). Even in the absence of such consent a party to, for instance, criminal proceedings, shall have access to such a document, if it could affect the outcome of the case (section 19, subsection 1, as amended by Act no. 601/82). Access may, however, be refused to a document forming part of a pretrial record which has not yet been completed, provided access could jeopardise the investigation (subsection 3).         The publicity of court proceedings is governed by the 1984 Act on the Publicity of Court Proceedings (laki 945/84 oikeudenkäynnin julkisuudesta, lag 945/84 om offentlighet vid rättegång). A separate appeal against a decision concerning the publicity of proceedings is not allowed (section 11). The decision must thus be challenged in an ordinary appeal lodged by a party.         The court may, at the request of a party or for another weighty reason, decide to hold an oral hearing either entirely or partly in the absence of the public (section 5). If an oral hearing has been entirely or partly held in the absence of the public or if, during such a hearing, a document or information which should be kept confidential has been submitted, the court may decide that the documents in the case be kept confidential for up to forty years. The operative part of the judgment as well as the legal provisions invoked shall always be made public (section 9).         4.    Protection of sensitive information         According to the 1992 Act on Patients' Status and Rights (laki 785/92 potilaan asemasta ja oikeuksista, lag 785/92 om patientens ställning och rättigheter) which entered into force on 1 May 1993, patient records shall be kept confidential. Information may only be disclosed to a third party with the patient's written consent. Information may, nevertheless, be disclosed to, among others, a court of law, another authority or a society which has been granted access thereto by law (section 13).         The 1987 Act on Personal Data Files (henkilörekisterilaki 471/87; personregisterlag 471/87) contains provisions on the administration of data files. Sensitive information concerning, for instance, someone's state of health shall not be entered in such a file (section 6). An exception is, however, made for, among others, health care authorities and officials (section 7). If the Data Protection Ombudsman (tieto- suojavaltuutettu, dataombudsmannen) finds out that personal data are, inter alia, being disclosed contrary to the law, an attempt shall be made to have the file keeper change its practice voluntarily. If necessary, the matter shall be brought before the Data Protection Board (tietosuojalautakunta, datasekretessnämnden) or the Public Prosecutor (section 34). The Board may on pain of an administrative fine (uhkasakko, vite) order that the file keeper correct its wrongdoing. It may also prohibit further data disclosure or order that the keeping of personal data files must cease (section 35, subsections 2 and 3 and section 36). An appeal against an above-mentioned decision of the Board lies with the Supreme Administrative Court (korkein hallinto-oikeus, högsta förvaltningsdomstolen)(section 38).         The keeper of a personal data file is liable to compensate the financial loss and, provided it is not of a minor character, the suffering caused to a person by the use or disclosure of file information contrary to the 1987 Act (section 42).   COMPLAINTS         1.    The applicant complains under Article 8 of the Convention that her right to respect for her private and family life has been violated in that         (a) in the investigation of the charges against her husband X. her doctors were unlawfully forced to disclose information regarding her state of health;         (b) the search of the hospital treating her and the seizure of her records there were not justified for the purposes of the above investigation;         (c) in any event her entire hospital records should not have been included in the pretrial record and later included in the City Court's documents, as only a minor part of the records were relevant to the investigation;         (d) the courts ordered that her hospital records should be kept confidential only for ten years, and in that         (e) in its judgment the Court of Appeal disclosed her identity and status as a carrier of HIV.         In addition, the applicant complains that the State showed a lack of respect for her private and family life         (f) by not preventing newspapers from reporting about the criminal proceedings against her husband in such a way that her identity and status as a carrier of HIV was disclosed; and         (g) by not preventing her employer from subsequently terminating her employment contract.         More specifically, the applicant considers that the seizure of her hospital records circumvented her right not to testify in the proceedings against her husband. No fair balance was struck between her interest in not having her disease disclosed to the public and the public interest in investigating the offences of which her husband was suspected. Had she known that her identity and status as a carrier of HIV would be disclosed in a judgment, she would not have agreed to testify as a witness. The disclosure allegedly violated section 17 of the 1951 Act on the Publicity of Official Documents. The applicant stresses that she and her husband are the only persons resident in Finland with their family name. The disclosure of her status as a carrier of HIV has therefore already had serious and irreversible consequences for her. Reference is finally made to a recent judgment in a case also concerning criminal contamination with HIV and in which the Supreme Court did not reveal the identity of the witnesses.   2.     The applicant also complains that, as a third party to the criminal proceedings against her husband X., she has no effective remedy at her disposal in order to challenge the violations alleged above. In this respect she invokes Article 13 of the Convention.   PROCEEDINGS BEFORE THE COMMISSION         The application was introduced on 21 May 1993 and registered on 8 June 1993.         On 2 March 1994 the Commission decided to communicate the application to the respondent Government, pursuant to Rule 48 para. 2 (b) of the Rules of Procedure.         The Government's written observations were submitted on 20 April 1994. The applicant replied on 1 June 1994.         On 5 July 1994 the Commission granted the applicant legal aid.         Additional observations were submitted by the Government on 8 and 20 February 1995 and by the applicant on 23 February 1995.         On 28 February 1995 the Commission decided to give the application precedence in accordance with Rule 33 of its Rules of Procedure.   THE LAW         1.    The applicant complains under Article 8 (Art. 8) of the Convention that her right to respect for her private and family life has been violated in that         (a) in the investigation of the charges against her husband X. her doctors were unlawfully forced to disclose information regarding her state of health;         (b) the search of the hospital treating her and the seizure of her records there were not justified for the purposes of the above investigation;         (c) in any event her entire hospital records should not have been included in the pretrial record and later included in the City Court's documents, as only a minor part of the records were relevant to the investigation;         (d) the courts ordered that her hospital records should be kept confidential only for ten years, and in that         (e) in its judgment the Court of Appeal disclosed her identity and status as a carrier of HIV.         In addition, the applicant complains that the State showed a lack of respect for her private and family life         (f) by not preventing newspapers from reporting about the criminal proceedings against her husband in such a way that her identity and status as a carrier of HIV was disclosed; and         (g) by not preventing her employer from subsequently terminating her employment contract.         Article 8 (Art. 8) of the Convention reads as follows:         "1.   Everyone has the right to respect for his private and       family life, his home and his correspondence.         2.    There shall be no interference by a public authority       with the exercise of this right except such as is in       accordance with the law and is necessary in a democratic       society in the interests of national security, public       safety or the economic well-being of the country, for the       prevention of disorder or crime, for the protection of       health or morals, or for the protection of the rights and       freedoms of others."         The Government submit that the complaints under this provision are all manifestly ill-founded. Any interference with the applicant's rights under Article 8 (Art. 8) was justified under para. 2 of that provision, given that the measures complained of were carried out in accordance with the law with the aim of preventing disorder and crime and protecting the health as well as the rights and freedoms of others. The measures were not disproportionate to their aims and were therefore necessary in a democratic society. In the alternative, the Government argue that the State has not shown any lack of respect for the applicant's rights under Article 8 (Art. 8), since a fair balance was struck between the conflicting interests at stake.         As regards the inclusion of the applicant's hospital records in the pretrial record, the Government refer to the need to ensure that the complainants were informed about all evidence obtained. As a pretrial investigation shall be conducted objectively, it would not have been justified to restrict the investigation only to part of the applicant's hospital records. The courts were entitled to be informed of all material potentially relevant to the case. Moreover, any pretrial investigation material which has become part of the evidence before a court should as a principle be available to the public. In order to ensure the publicity of court proceedings, as guaranteed by Article 6 para. 1 (Art. 6-1) of the Convention, it is not justified that court documents concerning a person's health should always be declared confidential. The City Court's decision to declare the applicant's hospital records confidential only for a period of ten years was based on common practice and following a balancing of the private and public interests in the matter.         As regards the disclosure in the Court of Appeal's judgment of the applicant's identity and status as a carrier of HIV, the Government concede that it is appropriate court procedure in cases dealing with an extremely sensitive private matter to avoid referring to the person concerned in a way permitting his or her identification by outsiders, provided, however, that the clarity of a judgment is not jeopardised. The Court of Appeal's reasoning required that the applicant be referred to as the wife of the accused. The additional disclosure of her name was therefore of no significance. Finally, reference is again made to the requirement in Article 6 para. 1 (Art. 6-1) of the Convention that court proceedings should, in principle, be public. The Government consider that the exceptions permitted in that provision concern only the actual proceedings before a court and not its judgment as such.         The applicant maintains that it would have been possible to protect her identity without jeopardising the rights of the parties to the criminal proceedings. Instead of including her entire hospital records in the pretrial record they could have been abridged so as not to disclose information about, for instance, her mental state which was irrelevant to the pretrial investigation. The information disclosing her identity could furthermore have been deleted or distorted in order to prevent her identification. The seizure of her hospital records was not "necessary in a democratic society", since they contained no information about the sexual relations between her and her husband. Nor did they offer any convincing evidence that he had known that he was carrying HIV at the time of the sexual offences. Finally, the disclosure in the Court of Appeal's judgment of the applicant's identity and status as a carrier of HIV   was not "necessary in a democratic society" either. The judgment could have been kept confidential apart from its operative provisions and the legal provisions applied.         The Commission has carried out a preliminary examination of the above complaints and considers that they raise questions of fact and law of such a complex nature that their determination requires an examination of the merits. None of the complaints can therefore be declared inadmissible as being manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention. No other reason for declaring any of the complaints inadmissible has been established.   2.     The applicant also complains that, as a third party to the criminal proceedings against her husband, she has no effective remedy at her disposal in order to challenge the violations alleged above. In this respect she invokes Article 13 (Art. 13) of the Convention. This provision reads as follows:         "Everyone whose rights and freedoms as set forth in this       Convention are violated shall have an effective remedy       before a national authority notwithstanding that the       violation has been committed by persons acting in an       official capacity."         The Government submit that this complaint is also manifestly ill- founded, since the applicant has no arguable claim of a violation of her rights under Article 8 (Art. 8) of the Convention. In the alternative, they submit that she had a sufficient aggregate of non- judicial remedies at her disposal. Accordingly, she could have instituted criminal proceedings against the civil servants allegedly responsible for the measures complained of, in pursuance of the Constitution Act (Suomen hallitusmuoto 94/19, Regeringsform för Finland 94/19) and the Penal Code (rikoslaki 39/1889, strafflag 39/1889). Moreover, under the Tort Liability Act (vahingonkorvauslaki 412/74, skadeståndslag 412/74) damage proceedings may be instituted against the State for actions taken by civil servants. Furthermore, the applicant could have lodged complaints with the Parliamentary Ombudsman or the Chancellor of Justice (valtioneuvoston oikeuskansleri, justitiekanslern i statsrådet), both being competent to bring charges against civil servants. Finally, the Government refer to the remedies under the 1987 Act on Personal Data Files.         The applicant maintains that she had - and has - no effective remedy at her disposal in order to challenge the violations which allegedly have occurred. In particular, as a non-party to the criminal proceedings against X. she could not object to the use and disclosure of her hospital records and status as a carrier of HIV.         The Commission has carried out a preliminary examination of this complaint and considers that it raises questions of fact and law of such a complex nature that their determination requires an examination of the merits. The complaint cannot therefore be declared inadmissible as being manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention. No other reason for declaring the complaint inadmissible has been established.         For these reasons, the Commission, unanimously,         DECLARES THE APPLICATION ADMISSIBLE,       without prejudging the merits of the case.   Secretary to the First Chamber    President of the First Chamber          (M.F. BUQUICCHIO)                (C.L. ROZAKIS)