CEDH · CASELAW;REPORTS;ENG — 2 décembre 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 } .s76CF415B { page-break-before:always; clear:both }                    EUROPEAN COMMISSION OF HUMAN RIGHTS                      Application No. 22009/93                                 Z.                               against                               Finland                      REPORT OF THE COMMISSION                    (adopted on 2 December 1995)                          TABLE OF CONTENTS                                                             Page   I.    INTRODUCTION      (paras. 1-18). . . . . . . . . . . . . . . . . . . . . .1        A.    The application           (paras. 2-4). . . . . . . . . . . . . . . . . . . .1        B.    The proceedings           (paras. 5-13) . . . . . . . . . . . . . . . . . . .1        C.    The present Report           (paras. 14-18). . . . . . . . . . . . . . . . . . .2   II.   ESTABLISHMENT OF THE FACTS      (paras. 19-110). . . . . . . . . . . . . . . . . . . . .4        A.    The particular circumstances of the case           (paras. 19-85)   . . . . . . . . . . . . . . . . . .4        B.    Relevant domestic law and practice           (paras. 86-110) . . . . . . . . . . . . . . . . . 13             1.    The right to remain silent as a witness                (para. 86) . . . . . . . . . . . . . . . . . 13             2.    The right and obligation to observe secrecy                as a witness                (paras. 87-92) . . . . . . . . . . . . . . . 13             3.    Seizure of confidential information                (para. 93) . . . . . . . . . . . . . . . . . 15             4.    Protection of confidential information                (paras. 94-96) . . . . . . . . . . . . . . . 15             5.    The obligation to report a contagious disease                (para. 97) . . . . . . . . . . . . . . . . . 16             6.    Publicity of documents                (paras. 98-101)   . . . . . . . . . . . . . . 16             7.    Publicity of court proceedings                (paras. 102-103) . . . . . . . . . . . . . . 17             8.    Disclosure of confidential information                (paras. 104-107) . . . . . . . . . . . . . . 17             9.    Nullification and annulment                (paras. 108-109) . . . . . . . . . . . . . . 18             10.   Case-law of the Supreme Court                (para. 110)   . . . . . . . . . . . . . . . . 18                          TABLE OF CONTENTS                                                             Page   III. OPINION OF THE COMMISSION      (paras. 111-173) . . . . . . . . . . . . . . . . . . . 19        A.    Complaints declared admissible           (para. 111) . . . . . . . . . . . . . . . . . . . 19        B.    Points at issue           (para. 112) . . . . . . . . . . . . . . . . . . . 19        C.    As regards Article 8 of the Convention           (paras. 113-165). . . . . . . . . . . . . . . . . 19             (i)   The hearing of the applicant's doctors and                psychiatrist as witnesses                (paras. 114-125) . . . . . . . . . . . . . . 19             (ii) The investigatory measures, the inclusion                of the applicant's patient records in the                court documents and their future availability                to the public                (paras. 126-132) . . . . . . . . . . . . . . 22             (iii)The Court of Appeal's disclosure of, inter alia,                the applicant's status as a carrier of HIV                (paras. 133-138) . . . . . . . . . . . . . . 23             (iv) The alleged lack of safeguards                (paras. 139-140) . . . . . . . . . . . . . . 24             (v)   Remaining aspects                (para. 141)   . . . . . . . . . . . . . . . . 25             (vi) The Commission's considerations                (paras. 142-165) . . . . . . . . . . . . . . 25             CONCLUSION           (para. 166) . . . . . . . . . . . . . . . . . . . 30        D.    As regards Article 13 of the Convention           (paras. 167-170). . . . . . . . . . . . . . . . . 30             CONCLUSION           (para. 171) . . . . . . . . . . . . . . . . . . . 30        E.    Recapitulation           (paras. 172-173). . . . . . . . . . . . . . . . . 30   APPENDIX: DECISION OF THE COMMISSION AS TO THE           ADMISSIBILITY OF THE APPLICATION. . . . . . . . . 32   I.    INTRODUCTION   1.    The following is an outline of the case as submitted to the European Commission of Human Rights, and of the procedure before the Commission.   A.    The application   2.    The applicant is a Finnish citizen, born in 1964 and resident in Helsinki. She was represented before the Commission by Mr. Markku Fredman, a lawyer practising in Helsinki, and Dr. Martin Scheinin, Doctor of Law, Helsinki.   3.    The application is directed against Finland. The respondent Government were represented by their agent, Mr. Tom Grönberg, formerly Director-General for Legal Affairs, Ministry for Foreign Affairs, succeeded by Mr. Holger Rotkirch, present Director-General, both assisted by co-agent Mr. Arto Kosonen, legal adviser of the Ministry.   4.    The case concerns the manner in which evidence was taken by the police and accepted by the courts in the course of criminal proceedings instituted against the applicant's husband on suspicion that he had knowingly contaminated other women with HIV. As a result of the measures taken by the authorities the applicant's status as a carrier of HIV and other intimate private matters were disclosed. The case also concerns the alleged lack of effective remedies enabling the applicant to challenge the measures taken or envisaged by the authorities. The applicant invokes Articles 8 and 13 of the Convention.   B.    The proceedings   5.    The application was introduced on 21 May 1993 and registered on 8 June 1993.   6.    On 2 March 1994 the Commission (First Chamber) decided, pursuant to Rule 48 para. 2 (b) of its Rules of Procedure, to give notice of the application to the respondent Government and to invite the parties to submit written observations on its admissibility and merits.   7.    The Government's observations were submitted on 20 April 1994. The applicant replied on 1 June 1994.   8.    On 5 July 1994 the Commission granted the applicant legal aid for the representation of her case.   9.    Additional observations on the admissibility and merits of the case were submitted by the Government on 8 and 20 February 1995 and by the applicant on 23 February 1995.   10.   On 28 February 1995 the Commission declared the application admissible and decided to give it precedence in accordance with Rule 33 of the Commission's Rules of Procedure. It furthermore invited the parties to submit further observations on the merits and requested the Government to submit copies of certain documents.   11.   The text of the Commission's decision on admissibility was sent to the parties on 8 March 1995. The applicant submitted further observations on the merits on 4 April, 8 May, 5 and 22 June 1995 as well as on 8 September 1995. The Government submitted observations and copies of documents on 6 April 1995, 8 May 1995 as well as on 1, 16 and 27 June 1995.   12.   After declaring the case admissible, the Commission, acting in accordance with Article 28 para. 1 (b) of the Convention, also placed itself at the disposal of the parties with a view to securing a friendly settlement. In the light of the parties' reaction, the Commission now finds that there is no basis on which such a settlement can be effected.   13.   On 28 November 1995 the plenary Commission ordered the transfer of the application to itself.   C.    The present Report   14.   The present Report has been drawn up by the Commission in pursuance of Article 31 of the Convention and after deliberations and votes, the following members being present:             MM.   S. TRECHSEL, President                H. DANELIUS                C.L. ROZAKIS                E. BUSUTTIL                A.S. GÖZÜBÜYÜK                A. WEITZEL                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                B. CONFORTI                N. BRATZA                I. BÉKÉS                J. MUCHA                E. KONSTANTINOV                D. SVÁBY                G. RESS                A. PERENIC                C. BÎRSAN                P. LORENZEN                K. HERNDL   15.   The text of this Report was adopted on 2 December 1995 by the Commission and is now transmitted to the Committee of Ministers of the Council of Europe, in accordance with Article 31 para. 2 of the Convention.   16.   The purpose of the Report, pursuant to Article 31 of the Convention, is:        (i)   to establish the facts, and        (ii) to state an opinion as to whether the facts found disclose           a breach by the State concerned of its obligations under           the Convention.   17.   The Commission's decision on the admissibility of the application is annexed hereto.   18.   The full text of the parties' submissions, together with the documents lodged as exhibits, are held in the archives of the Commission.   II.   ESTABLISHMENT OF THE FACTS   A.    The particular circumstances of the case   19.   The applicant and her husband, X., a foreign citizen, are both carriers of the human immunodeficiency virus (HIV).   20.   On 12 December 1991 X. committed a violent sexual offence against O. and, on 19 December 1991, against R.   21.   On 1 March 1992 X. committed an act of fornication with M., offending her personal freedom. She lodged a complaint with the police which subsequently also began to investigate the case as attempted manslaughter, suspecting that X. had deliberately subjected M. to a risk of being infected with HIV.   22.   In a police interview on 5 March 1992 M. identified X. as the perpetrator. During the interview the police informed M. that the applicant was carrying HIV.   23.   On 6 March 1992 X. underwent a blood test for the purpose of verifying whether he was carrying HIV.   24.   On 10 March 1992 the City Court (raastuvanoikeus, rådstuvu- rätten) of Helsinki convicted X. of the rape of O. on 12 December 1991 and sentenced him to a conditional prison sentence. The trial was held behind closed doors and the City Court ordered that the documents adduced in the case should remain confidential for a certain period of time.   25.   Around 15 March 1992 M.'s boyfriend T. saw the applicant and asked her whether X. was carrying HIV.   26.   On 19 March 1992 X. was informed of the results of the blood test which indicated that he was carrying HIV.   27.   In March or April 1992 the Public Prosecutor charged X. with fornication violating M.'s personal freedom.   28.   On 6 April 1992 T. telephoned the applicant and cited passages from confidential court documents pertaining to the trial against X. which had ended on 10 March 1992.   29.   On 7 April 1992 the police interviewed the applicant in the investigation of the offences committed on 1 March 1992 of which X. had been suspected. She refused to testify as a witness, invoking her status as   X.'s spouse.   30.   In connection with a second police interview on 10 April 1992 M. was informed that X. was carrying HIV.   31.   On 14 April 1992 the police interviewed T. as a witness in regard to the contents of his telephone conversation with the applicant on 6 April 1992.   32.   At the City Court's first hearing on 22 April 1992 M.'s counsel asked X. whether the applicant was also carrying HIV. X. refused to answer.   33.   At the City Court's hearing on 6 May 1992 M. confirmed that she had been informed by the police that the applicant was carrying HIV. The City Court furthermore heard T. in regard to the contents of his telephone conversation with the applicant on 6 April 1992.   34.   On 18 May 1992 Chief Doctor L. of the hospital treating X. and the applicant conveyed, with the consent of X., copies of X.'s patient records to the Public Prosecutor. The remarks concerning the applicant had been deleted from the copies.   35.   On 20 May 1992 the applicant appeared before the City Court, having been summoned to appear as a witness. She refused to give testimony in this capacity, invoking her status as X.'s spouse.   36.   On 27 May 1992 M.'s counsel remarked to the Public Prosecutor that the copies of X.'s patient records appeared to be incomplete.   37.   On 27 May 1992 the Public Prosecutor requested the police to hear Chief Doctor L. as well as other doctors who had possibly been treating X. The doctors were to be heard either as experts or witnesses with the intention of obtaining information in regard to the question when X. had become aware of his HIV-infection.   38.   On 15 June 1992 the large evening paper "Ilta-Sanomat" reported the trial against X., stating that he was carrying HIV and that there was not yet any certainty as regards the applicant's possible status as an HIV-carrier, since she had refused to give witness testimony.   39.   On 20 July 1992 the police requested the City Court to order Chief Doctor L. to disclose, as a witness, information enabling it to be established when X. had become aware of his HIV-infection. Such an order was issued by the City Court on 12 August 1992.   40.   At its hearing on 12 August 1992 the City Court dismissed Chief Doctor L.'s objections to testifying as a witness and proceeded to hearing him in this capacity. In his testimony he also disclosed information pertaining to the applicant but which had been omitted from the copies of X.'s hospital records handed over to the prosecution.   41.   The City Court ordered its hearing file, including the transcripts of Chief Doctor L.'s testimony, to be kept confidential until the determination of any possible charges against X. or until the close of the pretrial investigation, should no further charges be brought.   42.   On 31 August 1992 X. had sexual intercourse with P.-L. and, on 6 September 1992 he raped her. On 10 September 1992 he raped P. Both lodged complaints with the police which also began to investigate the cases as attempted manslaughter, suspecting that X. had deliberately subjected the complainants to a risk of being infected with HIV. On 10 September 1992 X. was arrested and later detained pending trial.   43.   On 14 September 1992 the police interviewed the applicant in the pre-trial investigation of the offences committed on 6 and 10 September 1992 of which X. had been suspected. She again refused to testify as a witness, invoking her status as X.'s spouse. She also expressed fears that the documents in the case, including her possible testimony, would not remain confidential.   44.   On 18 September 1992 R. lodged a complaint with the police, accusing X. of rape committed on 19 December 1991. The police officer recording the complaint supplemented it by stating that the applicant had, already in 1990, been found to carry HIV. The police also began to investigate the case as attempted manslaughter, suspecting that X. had deliberately subjected R. to a risk of being infected with HIV.   45.   At the City Court's hearing on 23 September 1992 the complainants' (i.e. by now R.'s, M.'s, P.-L.'s and P.'s) counsel asked X. whether the applicant was carrying HIV. X. refused to answer.   46.   On 23 September 1992 Chief Doctor L. lodged a petition with the Parliamentary Ombudsman (eduskunnan oikeusasiamies, riksdagens justitieombudsman), complaining of his obligation to testify as a witness.   47.   At the City Court's hearing on 18 November 1992 the complainants' counsel again asked X. whether the applicant was carrying HIV. He referred to R.'s complaint of 18 September 1992 which the police had supplemented by referring to the applicant's HIV-status. X. refused to answer.   48.   At the City Court's hearing on 30 December 1992 the complainants' counsel asked X. when he had been informed that the applicant was carrying HIV. X. refused to answer.   49.   On 4 January 1993 the applicant was temporarily laid off by the company employing her. The company invoked financial grounds and factors in its field of production.   50.   At the City Court's hearing on 27 January 1993 another of the physicians treating the applicant, Dr. K., was in spite of his objections heard as a witness called by the prosecution. In his testimony he disclosed, inter alia, information pertaining to the applicant.   51.   In her opinion of 5 February 1993 the Deputy Parliamentary Ombudsman considered that no measures were called for in response to Chief Doctor L.'s complaint. She observed that domestic law had not been violated. 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 protecting confidential information pertaining to her.   52.   Heard by the police as an expert on 6 February 1993, Dr. S.V. confirmed that the applicant was known to be carrying HIV.   53.   On 10 February 1993 the Public Prosecutor ordered the police to hear the applicant's doctors as witnesses in the investigation of the counts of attempted manslaughter of which X. had been suspected.   54.   At the City Court's hearing on 3 March 1993 Chief Doctor L. was, despite his renewed objections, again heard as a witness called by the prosecution. Before testifying he read out the applicant's letter to him dated 23 February 1993 which stated inter alia as follows:        (translation from Finnish)        "... The case concerns criminal charges against my husband      which are considered to outweigh a physician's obligation      and right to respect secrecy. It seems to me that you have      been called to appear as a witness because I myself have      invoked my right ... to refuse to testify [in that      capacity]. In your capacity as a physician you are      therefore likely to be asked questions which I, as X.'s      spouse, have the right to refuse to reveal. The information      which you have emanates from me and has been obtained by      you because it has been my understanding that it would      remain confidential ... .[N]or could I have imagined that      [such] information could be used for the purpose of      criminal proceedings in which my husband is facing charges.      As I see it, the hearing of you as a witness is merely      aimed at circumventing my lawful right to refuse to testify      against my husband ...        ... I therefore request you to refer to these matters, when      you are being asked to testify in matters which concern      only me. It is my opinion that you should not be obliged to      give testimony in those matters and that the charges should      be dealt with in such a manner that I will not in any way      be forced to take part in the establishment of the [facts].      [I] am under no obligation to do so. ..."   55.   In his testimony Chief Doctor L. again disclosed, inter alia, information pertaining to the applicant.   56.   On 8 and 9 March 1993 the police conducted a search at the hospital where the applicant and X were occasionally being treated. All records pertaining to the applicant were seized and photocopied and the originals were returned. Copies of all records were annexed to the pretrial investigation record concerning the charges for attempted manslaughter committed by X.   57.   The seized records comprised some thirty documents which contained, inter alia, the following statements:        (translation from Finnish)        "...      25 September 1990: [The applicant has been] found to be      HIV-positive in the beginning of the autumn of 1990. [She]      guesses that she was contaminated at the end of 1989. ...      [She] is married to a [foreign] citizen, who she thinks is      [HIV]-negative. ...        5 June 1991: ... [The applicant's husband] is completely denying      that he could have an HIV-infection. ...   58.   7 June 1991: ... According to [the applicant], [her]      husband most likely also has an HIV infection but [he] has      not gone to be tested. ...        23 December 1991: ... [The applicant's husband] has not      gone to HIV-tests and is himself of the opinion that he is      not carrying the virus. ..."   59.   Among the other material seized at the applicant's hospital were test results from a large number of laboratory tests and examinations concerning other issues than the existence of HIV in her blood, information about her previous illnesses, her mental state as well as a survey of her quality of life based on an assessment by herself.   60.   On 10 March 1993 the City Court decided to include the copies of the seized records in its documents. On the same day it heard Dr. S.V. as an expert called by the prosecution.   61.   At the City Court's hearing on 17 March 1993 another of the physicians treating the applicant, Dr. V., was despite his objections heard as a further witness called by the prosecution. He confirmed, inter alia, that a blood test carried out in August 1990 had shown that the applicant was carrying HIV. Despite their objections two further physicians treating the applicant, Drs. S.-H. and S., were also heard as witnesses called by the prosecution.   62.   On 7 April 1993 Chief Doctor L. as well as Drs. K., V., S.-H. and S. were heard as witnesses before the City Court. Also Dr. S.V. was now heard as a witness. All had been called by the prosecution.   63.   It appears that Dr. J.S. was also heard before the City Court in his capacity as witness called by the prosecution.   64.   On 9 April 1993 the leading daily "Helsingin Sanomat" reported about the seizure of the applicant's hospital records under the headline "The Prosecutor got the patient records of the wife of the accused HIV rapist" (translation from Finnish). Both X.'s first name and family name were stated in full. The applicant was referred to as his wife.   65.   On 23 April 1993 the applicant's employment contract was terminated.   66.   At a hearing before the City Court on 5 May 1993 the applicant's psychiatrist, Dr. K.R., was despite his objections heard as a witness called by the prosecution. Dr. S.V. was again heard as a witness. Also two further physicians who had been treating the applicant, Drs. T. and R., were heard as witnesses despite their objections.   67.   At the City Court's hearing on 5 May 1993 the applicant agreed to give testimony as a witness, stating that the matters concerning her had already been dealt with by the City Court in other ways. She testified, inter alia, that she had not received the HIV infection from X.   68.   All the hearings before the City Court took place behind closed doors.   69.   On 19 May 1993 the City Court convicted X. on, inter alia, three counts of attempted manslaughter committed on 1 March, 31 August and 10 September 1992. It rejected, inter alia, the charges for attempted manslaughter committed on 19 December 1991 but convicted X. of rape. His aggregated sentence amounted to seven years' imprisonment.   70.   The City Court made public the provisions applied in the case, the operative part of the judgment and an abridged version of its reasoning. Its full reasoning and the documents in the case were ordered to be confidential for a period of ten years. Both the complainants and X. had requested a longer period of confidentiality.   71.   Appeals against the City Court's judgment were lodged with the Court of Appeal (hovioikeus, hovrätten) of Helsinki by the complainants, X. as well as the prosecution.   72.   On 14 October 1993 the Court of Appeal held a hearing of the case at which all appellants requested that the court documents should be ordered to be kept confidential for more than ten years. A period of thirty years was suggested.   73.   On 10 December 1993 the Court of Appeal upheld the City Court's judgment, inter alia, in so far as X. had been convicted on three counts of attempted manslaughter. It also convicted X. on, inter alia, two further counts of attempted manslaughter committed on 19 December 1991 and 6 September 1992. His aggregated sentence was increased to over eleven years' imprisonment.   74.   The Court of Appeal published its judgment as a whole. In so far as it convicted X. on two further counts of attempted manslaughter, it stated, inter alia, as follows:        (translation from Finnish)        "... According to [X.; mentioned by his first names and      family name] he found out that he was suffering from an HIV      infection on 19 March 1992 ... . He has denied having      undergone any HIV examination after he was tested in Kenya      in January 1990. According to [X.], the result of the HIV      test was negative. ... [He] cannot therefore be considered      to have known with certainty that he was suffering from HIV      prior to having received the test results on 19 March 1992.        [X.] and [the applicant; mentioned by her first names and      family name] married on 12 April 1990. [The applicant] was,      on 31 August 1990, found to carry HIV. When heard as a      witness before the City Court, [she] stated having informed      X. of this finding at the end of 1990. When heard before      the Court of Appeal, X. stated that the applicant had      informed him about her disease already before he came to      Finland in January 1991. [He] has also stated that while      they were both living in Africa [the applicant] had been      suffering from some undefined disease. [She] had then ...      suspected that she might have become contaminated with HIV      but her infection had been discovered only after [she] had           returned to Finland.   75.   On the basis of the above statements by the spouses ... it      must be considered established that, given the status of      [X.'s] wife as an HIV-carrier, [X.] had reason to suspect      that he [himself] had [also] been contaminated with HIV      through their sexual intercourse.        According to [Dr. J.S.], heard as a witness before the City      Court, [X.] must, on the basis of the symptoms of his      disease, be considered to have contracted HIV at least a      year before the blood test administered in March 1992. ...      According to [Dr. S.V.], the fever disease which, according      to [the applicant's] patient records she is reported to      have suffered from in January 1990 and which was treated as      malaria, is quite likely to have been a primary      HIV-infection. Having regard to the fact that, when      contracting [her] fever disease at the end of 1989 or the      beginning of 1990, [the applicant] was staying in Mombasa,      where she had also met [X.], the Court of Appeal finds      Dr. S.V.'s opinion concerning the primary HIV infection      credible. Taking into account the moment when [the      applicant] was found to be carrying HIV, the Court of      Appeal finds it likely that she obtained the [disease] from      [X.]        On these grounds the Court of Appeal considers that [X.]      must have been aware of his HIV-infection at the latest in      December 1991. The fact that [he] nevertheless did not      undergo any HIV examinations other than those referred to      above shows that his attitude as regards the possibility      that others could be contaminated [with HIV] was at least      indifferent. Such an attitude must, as regards the question      of intent, be considered in the same way as if the      perpetrator had known with certainty of his disease. In the      assessment of [X.'s] intent, his behaviour must therefore      be considered in the same manner as regards all counts of      attempted manslaughter with which he has been charged.      ...      It has been shown in the case that, according to present      knowledge, an HIV-infection is lethal. [X.] has admitted      that he, already before arriving in Finland, had become      familiar with the character of [this] disease and with the      ways in which it could spread. Having also regard to [his]      statement that he had [previously] stayed in Uganda, Kenya      and Rwanda, Uganda being a country where the disease is      particularly widespread, and the general knowledge   that      [the disease] is lethal, and [noting] that [X.'s] wife has      also fallen ill [with this disease], [the Court of Appeal]      finds it likely that [X.] has been familiar with the      significant contamination risk and the lethal effects of      [the disease].        According to [Chief Doctor L.] and [Dr. S.V.], heard as      witnesses, the disease may spread already through one      sexual intercourse. ... X. must thus have realised that his      acts entailed, as a rather likely effect, subjecting [the      complainants] to a risk that they be contaminated with HIV.      Given that he has nevertheless acted in the manner      established, his acts must be considered intentional. In      this respect the Court of Appeal has also taken into      account that [X.] did not inform the complainants of the      possible contamination risk.      ...      ... [X.] must therefore be considered to have committed      attempted manslaughter also ... on 19 December 1991 and      6 September 1992. ..."   76.   The Court of Appeal maintained the confidentiality period ordered by the City Court as regards the court documents.   77.   On 16 December 1993 the daily "Helsingin Sanomat" reported the Court of Appeal's judgment, mentioning, inter alia, that the conviction had been based on the witness statement of "X.'s Finnish wife" (the name of X. being again stated in full). The article furthermore referred to the Court of Appeal's finding that the applicant was also a carrier of HIV. Other newspapers also reported the judgment and the reasons therefor.   78.   On 26 September 1994 the Supreme Court (korkein oikeus, högsta domstolen) refused X. leave to appeal.   79.   In a resolution of 11 October 1994 the Government Working Group of Experts on Matters Relating to HIV ("the Expert Group") found it justified that, in the case of someone suspected of having committed a serious offence, the interests in ensuring respect for his or her privacy, including confidential patient information, should outweigh the interests of society in investigating the offence. The Expert Group expressed its concern about the use in pretrial investigations and at trials of confidential patient information pertaining to third parties, who had not consented to the disclosure. It also expressed concern about the insufficient attention which the courts were paying to the interests of others in protecting such information when judgments were rendered and court records were made available to the public. In the Expert Group's view the situation was aggravated because of a third party's lack of remedies against these kinds of disclosures.   80.   The Expert Group concluded that the disclosure of confidential material pertaining to third persons could dissuade potential HIV-carriers from undergoing blood tests and HIV-carriers from seeking care. It therefore proposed that the Act on Pre-trial Investigation and the Act on Coercive Means of Criminal Investigation (pakkokeinolaki 450/87, tvångsmedelslag 450/87) be amended so as to specify the circle of persons whose patient information could be used in the investigation of an offence. If this circle were to include other than suspects, the legislation should be amended so as to ensure that non-suspects be heard and have effective remedies at their disposal prior to the intended use of the information.   81.   On 30 November 1994 the Social Insurance Institution (kansaneläkelaitos, folkpensionsanstalten) considered that the applicant had lost her ability to work and granted her a basic pension as from 1 November 1994. On 1 December 1994 her insurance company considered that she had, starting on 20 December 1993, lost her ability to work and granted her a supplementary pension as from 1 November 1994. These decisions were based on a medical report according to which the applicant was suffering from a deep and chronic depression.   82.   On 19 May 1995 the applicant requested the Supreme Court to nullify or annul the Court of Appeal's judgment as far as the Court had decided that the information and material pertaining to her should become public in 2002.   83.   In support of her request for a nullification of the judgment in question the applicant submitted, inter alia, that the Court of Appeal had committed a procedural error when not hearing her prior to deciding on the question of whether to order the material concerning her state of health to be kept and when considering the confidentiality period. She stated that she was suffering inconvenience as a result of the relevant part of the judgment.   84.   In support of her request that the Court of Appeal's judgment be annulled the applicant submitted, inter alia, that the judgment had manifestly been based on an incorrect application of the law. She invoked the 1992 Act on Patients' Status and Rights (laki 785/92 potilaan asemasta ja oikeuksista, lag 785/92 om patientens ställning och rättigheter), according to which information in patient records shall be kept confidential. It was true that such information could nevertheless, under certain circumstances referred to in the 1987 Act on Pretrial Investigation (esitutkintalaki 449/87, förundersökningslag 449/87), be conveyed to the courts and other authorities which are entitled under the law to obtain such information. The courts were, however, not entitled to order that this material should become public within a certain period of time, at least not without first hearing the applicant in order to obtain her possible consent. The applicant therefore submitted that the City Court and the Court of Appeal had applied domestic law incorrectly. She finally challenged the Court of Appeal's order that, among other court documents, material concerning her state of health should become available to the public in 2002. Such a disclosure would neither be in accordance with the law nor be necessary in a democratic society, as required by Article 8 of the Convention. Should the Court of Appeal's judgment be nullified or annulled, the applicant requested that the matter be referred back to the Court of Appeal, where she could be heard.   85.   On 22 May 1995 the applicant requested the Helsinki Police Department to investigate from whom the police had received the information that she was a carrier of HIV. This request was withdrawn in June 1995.   86.   On 1 September 1995 the Supreme Court decided not to nullify or annul the Court of Appeal's judgment of 10 December 1993. The Supreme Court found that the applicant had been informed of the judgment prior to 21 December 1993. It further found that in her case a request for nullification should have been lodged within six months from the Supreme Court's decision of 26 September 1994 to refuse leave to appeal. Since her request for a nullification had been lodged only on 23 May 1995, it was belated.   87.   As regards the applicant's request for annulment of the Court of Appeal's judgment, the Supreme Court considered that she did not have such a standing in the relevant proceedings that she would be entitled to lodge such a request.   B.    Relevant domestic law and practice        1.    The right to remain silent as a witness   88.   Chapter 17, section 20 (1) of the Code of Judicial Procedure (Oikeudenkäymiskaari, Rättegångsbalk) reads, in its relevant parts, as follows:        (Finnish)        "Todistaja ei saa kieltäytyä todistamasta. Vastoin      tahtoansa älköön kuitenkaan todistamaan vaadittako:        ... siltä, joka on ... avioliitossa ...jommankumman      asianosaisen kanssa;..."        (translation)        "A person may not refuse to serve as a witness. However,      the following shall not be required to serve as a witness      against their will:        ... a person who is ... married ... to one of the      parties;..."        2.    The right and obligation to observe secrecy as a witness   89.   Chapter 17, section 23, subsection 1(3) of the same Code reads, in its relevant parts, as follows:        (Finnish)        "Todistaa ei saa:        ... lääkäri, ... siitä, mitä [hän] asemansa perusteella [on      saanut] tietää ja mitä asian laadun vuoksi on salassa      pidettävä, ellei se, jonka hyväksi vaitiolovelvollisuus on      säädetty, todistamiseen suostu;..."        (translation)        "The following may not serve as a witness:        ... a physician, ..., as regards information which [he or      she has] obtained in [this] capacity and which shall be      kept secret because of the nature of the matter, unless the      person for whose benefit the obligation to preserve secrecy      has been stipulated agrees to [such a witness      testimony];..."   90.   Chapter 17, section 23, subsection 3 of the same Code nevertheless provides that a physician may 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 (such as manslaughter), or with having attempted to commit such an offence.   91.   Section 27, subsection 1 of the 1987 Act on Pretrial Investigation reads as follows:        (Finnish)        "Todistajan on tutuudenmukaisesti ja mitään salaamatta      ilmaistava, mitä hän tietää tutkittavasta asiasta. Jos hän      kuitenkin olisi oikeudenkäynnissä oikeutettu tai      velvollinen kieltäytymään todistamasta, ilmaisemasta      seikkaa tai vastaamasta kysymykseen, jos tutkittavana      olevasta rikoksesta nostettaisiin syyte, hän on oikeutettu      tai velvollinen siihen myös esitutkinnassa."        (translation)        "A witness shall truthfully and without concealing matters      state what he [or she] knows about the case under      investigation. However, if he would have the right or      obligation to refrain from serving as a witness, from      revealing a