CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 22 mai 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. 20022/92                       by Anne-Marie ANDERSSON                       against Sweden         The European Commission of Human Rights sitting in private on 22 May 1995, the following members being present:              MM.    C.A. NØRGAARD, President                  H. DANELIUS                  C.L. ROZAKIS                  E. BUSUTTIL                  G. JÖRUNDSSON                  S. TRECHSEL                  A.S. GÖZÜBÜYÜK                  A. WEITZEL                  J.-C. SOYER                  H.G. SCHERMERS            Mrs.   G.H. THUNE            Mr.    F. MARTINEZ            Mrs.   J. LIDDY            MM.    L. LOUCAIDES                  J.-C. GEUS                  M.P. PELLONPÄÄ                  B. MARXER                  M.A. NOWICKI                  I. CABRAL BARRETO                  N. BRATZA                  I. BÉKÉS                  J. MUCHA                  E. KONSTANTINOV                  D. SVÁBY                  G. RESS                  A. PERENIC                  C. BÎRSAN              Mr.    H.C. KRÜGER, Secretary to the Commission         Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;         Having regard to the application introduced on 11 February 1992 by Anne-Marie Andersson against Sweden and registered on 22 May 1992 under file No. 20022/92;     Having regard to the reports provided for in Rule 47 of the Rules of Procedure of the Commission;         Having regard to the observations submitted by the respondent Government on 30 August 1994 and the observations in reply submitted by the applicant on 26 October 1994;         Having deliberated;         Decides as follows:   THE FACTS   a.     The particular circumstances of the case         The applicant, a Swedish citizen born in 1943, resides at Gothenburg. Before the Commission she is represented by her lawyer, Mrs. Siv Westerberg.         The facts of the case, as submitted by the parties, may be summarised as follows.         It appears that the applicant for some time had problems with her landlord and that she was eventually evicted from her flat. Following her eviction she apparently lived together with her son, born in 1981, in several different flats allocated to her by the social authorities. Certain court proceedings commenced concerning the applicant's eviction, ending with a judgment of the Court of Appeal (Hovrätten) for Western Sweden on 4 July 1988. The applicant submits that these court proceedings caused her mental and psychosomatic problems. In addition to these difficulties she experienced some dental problems which also influenced her mentally. As from May 1988 the applicant was on sick leave.         In April 1989, the applicant contacted a psychiatric clinic in Gothenburg, in particular due to the strains on her caused by her dental problems. From 20 August 1981, she was treated by the chief physician who, on several occasions, drew the applicant's attention to the possible detrimental effect her situation might have on her son and advised her to seek support for him from the children's psychiatric clinic or the social authorities. It appears, however, that the applicant did not follow this advice.         In January 1992, the chief physician, acting in accordance with a reporting obligation under the Social Services Act (Socialtjänst- lagen, 1980:620), contacted the social authorities and informed them of the applicant's health problems. At the request of the social authorities the physician submitted, on 16 January 1992, a written statement, which read as follows:   (translation)         "[The applicant] has had a polyclinical contact with a       psychiatrist at [the clinic] since 19 April 1989, from       20 August 1991 with the undersigned. The reason has been       pains in connection with dental problems and this has       caused her being on sick leave as from May 1988. The       patient does not consider herself to be mentally ill. She       has accepted the contact with us solely due to her need to       be put on the sick-list.         She has, in my opinion, an extreme personality and her       thoughts are, in conversations here, occupied by her severe       pains and her dissatisfaction with the treatment she got.       Her son has, on a few occasions, been with her. He seemed       quiet and sensitive.         The undersigned, as well as others in the medical service       with whom the patient has been in contact, have worried       about the possible effect of her severe pains on the son       she takes care of alone. I have on several occasions drawn            her attention to this, inter alia in letters            (please see copy), and asked her to contact [the            children's psychiatric clinic] or the social            authorities. As, apparently, this has not been            done, I called you today and I now send, as            agreed, a written account of the case.         As I do not find that, from a psychiatric point of view, we       can do more for the patient, who does not consider herself       to be mentally ill, I have referred her to the district       medical officer and she will, thus, have no further contact       with me."         The applicant's medical records were, apparently, not submitted to the social authorities. By letter the same day, the physician notified the applicant of the information imparted to the social authorities. The relevant part of the letter read as follows:   (translation)         "As you know, I have several times asked you to seek       support for your son who, naturally, cannot remain       unaffected by your severe pains. As I have not been able to       convince you that this is necessary, I have called social       welfare officer [M.-B. J.] and expressed my concern.       Unfortunately, I find myself obliged under the law to take       this action in an attempt to reduce future problems for the       boy (and thereby also for you)."         The chief physician's concern for the applicant's son was shared by the headmaster and a teacher at the school he attended. In October 1991, they had contacted the social authorities and expressed concern about his learning difficulties and his general state of health. Following this, the social authorities commenced an investigation which, on 2 March 1992, led to the placement of the son in a special therapeutic school, which he still attends. The placement was made with the applicant's consent and the school fee is paid by the social authorities.   b.     Relevant domestic law         Under Sections 1 and 2 of Chapter 2 of the Freedom of the Press Act (Tryckfrihetsförordningen), which is part of the Swedish Constitution, everyone is entitled to have access to public documents unless, within defined areas, access is limited by law. The Secrecy Act (Sekretesslagen, 1980:100) contains such limitations.         The main provision on the confidentiality of information in the field of health and medical care is found in Chapter 7, Section 1 of the Secrecy Act, the relevant parts of which read as follows:   (translation)         "Secrecy applies ... in the field of health and medical       care to information on the individual's state of health or       otherwise concerning his or her private life, unless it is       clear that the information can be disclosed without any       harm to the individual or persons closely related to him or       her. ..."   As appears from the above provision, there is a       presumption of confidentiality. It is applicable not only       in relation to the public, but also in relation to other       authorities. There are, however, legal provisions to the       effect that health and medical care authorities shall       submit information to another authority. Thus, Chapter 14,       Section 1 of the Secrecy Act provides the following:   (translation)         "Secrecy does not prevent ... the disclosure of information       to another authority, if an obligation to disclose the       information is laid down in an act of law or a Government       ordinance."         Such an obligation is laid down in Section 71 of the Social Services Act, subsections 2 and 4 of which read as follows:   (translation)         "Authorities whose activities relate to children and young       persons as well as other authorities within health and       medical care and social services are obliged immediately to       report to the Social Council if, in the course of their       activities, they receive information which may imply that       an intervention by the Social Council is necessary for the       protection of a minor. This also applies to the employees       of such authorities and to doctors, teachers, nurses and       midwives who are not so employed.         ...         Authorities, employees and practitioners referred to in       subsection 2 are obliged to give the Social Council all       information which may be of importance to an investigation       of a minor's need of protection."         At the time of the enactment of the Social Services Act, the Parliament's Standing Committee on Health and Welfare (Riksdagens socialutskott) stated that the reporting obligation did not depend on it being evident that the Social Council had to intervene. Also unconfirmed information or information which was difficult to assess was to be reported, if it implied that a child might be in need of support or assistance from the Council (cf. Report of the Standing Committee on Health and Welfare, SOU 1979/80:44, p. 113).         If information is submitted to the Social Council, Chapter 7, Section 4 of the Secrecy Act affords the same level of confidentiality as the above provision applicable to the health and medical care authorities. Chapter 7, Section 4 provides, in so far as relevant, the following:   (translation)         "Secrecy applies within the social services to information       concerning the individual's private life, unless it is       clear that the information can be disclosed without any       harm to the individual or persons closely related to him or       her. ..."   Under the Freedom of the Press Act and the       Secrecy Act, there is a right to appeal against a decision       not to grant access to public documents. There is, however,       no such right in respect of decisions to grant access to       information contained in public documents. Furthermore,       there is no right for the individual concerned to be       consulted before such information is disclosed.         Under Chapter 20, Section 3 of the Penal Code (Brottsbalken), a physician who discloses information which should be kept confidential according to law is guilty of breach of professional secrecy. Proceedings may be brought by the public prosecutor or the aggrieved individual. A breach of professional secrecy may also constitute a basis for claiming damages under the Tort Liability Act (Skadestånds- lagen, 1972:207).         Public authorities and their employees are, furthermore, subject to the supervision of the Chancellor of Justice (Justitiekanslern) and the Parliamentary Ombudsman (Justitieombudsmannen). The Chancellor and the Ombudsman investigate whether those exercising public powers abide by laws and follow applicable instructions and may prosecute a certain individual or refer the matter to disciplinary action by the relevant authority.     COMPLAINTS   1.     The applicant maintains that the chief physician's submission of information to the social authorities without her knowledge or consent interfered with her right to respect for her private life within the meaning of Article 8 para. 1 of the Convention. She furthermore maintains that this particular interference was not justified by any of the reasons set out in para. 2 of that provision.   2.     The applicant also contends that she had no remedy to which she could complain about the chief physician's disclosure of information. She invokes in this respect Articles 6 and 13 of the Convention.   PROCEEDINGS BEFORE THE COMMISSION         The application was introduced on 11 February 1992 and registered on 22 May 1992.         On 6 April 1994 the Commission (Second Chamber) 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 30 August 1994, after an extension of the time-limit fixed for that purpose. The applicant replied on 26 October 1994.   THE LAW   1.     The applicant maintains that the chief physician's submission of information to the social authorities without her knowledge or consent violated Article 8 (Art. 8) of the Convention, which 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 and morals, or for the protection of the       rights and freedoms of others."         The Government submit in the first place that the applicant cannot claim to be a victim, within the meaning of Article 25 (Art. 25) of the Convention, of a violation of Article 8 (Art. 8), for which reason this complaint should be declared incompatible with the Convention ratione personae. In the alternative, the Government submit that the complaint under Article 8 (Art. 8) is manifestly ill-founded. In support of their first claim, the Government argue that the applicant could have avoided having information forwarded to the social authorities by following the chief physician's advice to turn to those authorities herself and asking for support for her son. Furthermore, no information has been made public due to the fact that the information forwarded is protected by the same type of secrecy at the psychiatric clinic and the social authorities. As regards the alternative claim, the Government adduce the same reasons for finding that there has been no interference with the applicant's rights under Article 8 (Art. 8). Should, however, the Commission find that there has been such an interference, the Government contend that it has been justified, as it was in accordance with the law, in particular Section 71 of the Social Services Act, pursued the legitimate aims of protecting the son's health and rights and was proportionate to the aims pursued and thus necessary in a democratic society.         The applicant submits that the disclosure of information to the social authorities was not justified in the present case, as the son is still living with the applicant and is very well cared for. Moreover, the social authorities could have obtained the necessary information by questioning the son. Furthermore, the applicant accepts that a physician's obligation to report possible maltreatment of a child to the social authorities is necessary for the protection of the child. The applicant, however, contends that the child is, in such cases, sufficiently protected if the social authorities have access to information on the child. There is thus no need for the authorities to have access to information also on the child's parents.         The Commission considers that the disclosure by the chief physician of information on the applicant's mental and physical health to the social authorities amounted to an interference with the applicant's right to respect for her private life as ensured by Article 8 para. 1 (Art. 8-1) of the Convention. It must therefore be examined whether this interference was justified under the terms of Article 8 para. 2 (Art. 8-2). In this respect, the Commission recalls that three conditions must be satisfied: the interference must be "in accordance with the law", it must pursue one or more of the legitimate aims enumerated in para. 2 and it must be "necessary in a democratic society" for these aims.         As regards the first condition, the Commission finds that the disclosure of information was in conformity with Swedish law, namely Section 71 of the Social Services Act.         The Commission further finds that the interference had a legitimate aim under Article 8 para. 2 (Art. 8-2), namely the interests of the son, which in this case fall under the expressions "for the protection of health or morals" and "for the protection of the rights and freedoms of others".         It thus remains to be determined whether the interference was "necessary in a democratic society" in the interests of the son.         According to the established case-law of the Commission and the European Court of Human Rights, the notion of necessity implies that the interference corresponds to a pressing social need and, in particular, that it is proportionate to the legitimate aim pursued. In determining whether an interference is "necessary in a democratic society", the Commission furthermore has to take into account that a margin of appreciation is left to the Contracting States. That does not mean, however, that the Commission's review is limited to ascertaining whether the respondent State has exercised its discretion reasonably, carefully and in good faith. Furthermore, it cannot confine itself to considering the relevant decisions in isolation but must look at them in the light of the case as a whole. It must determine whether the reasons adduced to justify the interference at issue are "relevant and sufficient" (cf. Eur. Court H.R., Olsson judgment of 24 March 1988, Series A no. 130, pp. 31-32, paras. 67-68).         The Commission considers that the interference created by the disclosure of information to the social authorities was of a limited nature, as the information did not become public but remained protected by the same level of confidentiality as at the psychiatric clinic. Moreover, the applicant was notified of the disclosure.         Furthermore, the Commission cannot accept the applicant's argument that the interference went too far as the social authorities could have obtained the necessary information by questioning the son and as, in cases where there is a possible danger to a child's health, there is no need for the authorities to have access to information about the parents. The Commission considers that normally the mental and physical health of a parent is likely to affect a child. Consequently, in most cases the social authorities cannot adequately assess the need to intervene and protect a child without having access to information about the parents.         The Commission recalls that the chief physician's reason for forwarding information on the applicant's health problems to the social authorities was her concern that these problems might affect the applicant's son. The physician had earlier informed the applicant about her concern in this respect and advised the applicant to seek support for the son. The physician's concern does not seem to have lacked substance, as personnel at the school the son attended had expressed similar views in a report to the social authorities which led to the placement of the son in a special school with the applicant's consent.         In the light of the foregoing and the important interests which were to be protected the Commission finds that the disclosure of information to the social authorities was supported by relevant and sufficient reasons. Having regard to their margin of appreciation, the Swedish authorities were reasonably entitled to think that this measure was necessary. Accordingly, the Commission concludes that the disclosure of information can reasonably be regarded as "necessary in a democratic society" within the meaning of Article 8 para. 2 (Art. 8-2) of the Convention.     It follows that this part of the application is manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   2.     The applicant also contends that she had no remedy which she could use to complain about the chief physician's disclosure of information. She invokes in this respect Articles 6 and 13 (Art. 6, 13) of the Convention.         Article 6 para. 1 (Art. 6-1) of the Convention reads, in its relevant parts, as follows:         "In the determination of his civil rights and obligations       ..., everyone is entitled to a ... hearing by [a] ...       tribunal ..."         Article 13 (Art. 13) of the Convention provides the following:         "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 Article 6 (Art. 6) is not applicable to the present case and that this complaint should thus be declared incompatible with the Convention ratione materiae. The Government maintain that the applicant had no standing under Swedish law in procedures concerning the granting of access to official documents. Thus, she could not appeal against a decision to grant access to confidential information concerning her, nor was her consent to the disclosure of information required. Furthermore, there was an obligation under Section 71 of the Social Services Act to forward the information to the social authorities. For these reasons, the Government contend that the applicant cannot claim, on arguable grounds, that she was entitled under Swedish law to protection of the information in question in relation to the social authorities. Thus, there was in the present case no "right" at stake.         The Government further submit that, in the light of their observations on the admissibility of the complaints under Articles 6 and 8 (Art. 6, 8) of the Convention, Article 13 (Art. 13) is not applicable and this complaint should thus be declared incompatible with the Convention ratione materiae. Should the Commission not accept this argument, the Government contend that the complaint is manifestly ill- founded. In this respect, the Government maintain that, in the absence of a right to appeal against a decision to report certain facts to the social authorities, the aggregate of remedies provided for under Swedish law satisfies the conditions of Article 13 (Art. 13). The Government refer to the possibility for the applicant to bring criminal or civil action against the physician or to lodge complaints with the Chancellor of Justice or the Parliamentary Ombudsman.         The applicant submits that, in cases like the present one, there should be a possibility for a parent to appeal to a court before a physician's decision to disclose information on the parent is executed. She contends that in the present case a court would undoubtedly have found that it was not necessary to forward the information in question to the social authorities.         The Commission considers, after a preliminary examination of the complaints under Article 6 and 13 (Art. 6, 13) of the Convention in the light of the parties' submissions, that they raise questions of fact and law which require an examination of the merits. This part of the application 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 grounds for inadmissibility have been established.         For these reasons, the Commission by a majority         DECLARES ADMISSIBLE, without prejudging the merits of the case,       the applicant's complaints under Articles 6 and 13 (Art. 6, 13)       of the Convention that she had no remedy which she could use to       complain about the disclosure of information;         DECLARES INADMISSIBLE the remainder of the application.   Secretary to the Commission        President of the Commission         (H.C. KRÜGER)                      (C.A. NØRGAARD)