In the case of Z v. Finland,
The European Court of Human Rights, sitting,
in accordance with Article 43 (art. 43) of the Convention for the
Protection of Human Rights and Fundamental Freedoms ("the
Convention") and the relevant provisions of Rules of Court B, as a Chamber composed of the following judges:
Mr R. Ryssdal, President,
Mr F. Gölcüklü,
Mr L.-E. Pettiti,
Mr C. Russo,
Mr J. De Meyer,
Mr R. Pekkanen,
Mr G. Mifsud Bonnici,
Mr J. Makarczyk,
Mr B. Repik,
and also of Mr H. Petzold, Registrar, and Mr P.J. Mahoney,
Having deliberated in private on 31 August 1996 and 25 January
Delivers the following judgment, which was adopted on the last-mentioned
The case was referred to the Court by the European
Commission of Human Rights ("the Commission") on 25 January 1996,
within the three-month period laid down by Article 32 para. 1 and Article 47 of
the Convention (art. 32-1, art. 47). It originated in an application (no.
22009/93) against the Republic of Finland lodged with the Commission under
Article 25 (art. 25) by a Finnish national, Mrs Z, on 21 May 1993.
The Commission’s request referred to Articles 44 and 48 (art.
44, art. 48) and to the declaration whereby Finland recognised the compulsory
jurisdiction of the Court (Article 46) (art. 46). The object of the request was
to obtain a decision as to whether the facts of the case disclosed a breach by
the respondent State of its obligations under Articles 8 and 13 of the
Convention (art. 8, art. 13).
In response to the enquiry made in accordance with Rule 35
para. 3 (d) of Rules of Court B, the applicant stated that she wished to take
part in the proceedings and designated the lawyers who would represent her
The Chamber to be constituted included ex officio Mr R.
Pekkanen, the elected judge of Finnish nationality (Article 43 of the
Convention) (art. 43), and Mr R. Ryssdal, the President of the Court (Rule
21 para. 4 (b)). On 8 February 1996, in the presence of the Registrar, the
President drew by lot the names of the other seven members, namely Mr F.
Gölcüklü, Mr L.-E. Pettiti, Mr B. Walsh, Mr C. Russo, Mr J. De Meyer, Mr G.
Mifsud Bonnici and Mr B. Repik (Article 43 in fine of the Convention and Rule
21 para. 5) (art. 43). Subsequently Mr J. Makarczyk, substitute judge, replaced
Mr Walsh, who was unable to take part in the further consideration of the case (Rules
22 para. 1 and 24 para. 1).
As President of the Chamber (Rule 21 para. 6), Mr Ryssdal,
acting through the Registrar, consulted the Agent of the Finnish Government
("the Government"), the applicant’s lawyer and the Delegate of the
Commission on the organisation of the proceedings (Rules 39 para. 1 and 40).
Pursuant to the order made in consequence on 25 March 1996, the Registrar
received the applicant’s memorial on 29 May 1996 and the Government’s memorial
on 31 May 1996. On 5 July 1996 the Secretary to the Commission indicated that
the Delegate would submit his observations at the hearing.
On various dates between 5 July and 9 August 1996 the
Commission produced a number of documents from the proceedings before it, as
requested by the Registrar on the President’s instructions.
On 20 June 1996 the Registrar received from the Government
a request to hold the hearing set down for 29 August 1996 in camera. The
President invited the Delegate of the Commission and the applicant to comment
on the Government’s request. On 24 June 1996, the Registrar received the
applicant’s observations on the matter.
In the light of the observations submitted by the Government
and the applicant and the sensitive nature of the case, the Chamber decided on
26 June 1996 that the hearing should be held in camera, being satisfied
that there were exceptional circumstances for the purposes of Rule 18
warranting a derogation from the principle of publicity applying to the Court’s
In accordance with the President’s and the Chamber’s
decisions, the hearing took place in camera in the Human Rights Building, Strasbourg, on 29 August 1996. The Court had held a preparatory meeting beforehand.
There appeared before the Court:
(a) for the Government
Mr H. Rotkirch,
Director of Legal Affairs,
Ministry of Foreign Affairs, Agent,
Mr A. Kosonen, Legal Adviser,
of Foreign Affairs, co-Agent,
Mr I. Liukkonen,
Legal Adviser, Ministry of Justice,
Mr J. Tenneberg,
Legal Adviser, National Board
of Medical Affairs, Advisers;
(b) for the Commission
Mr P. Lorenzen, Delegate;
(c) for the applicant
Mr M. Fredman,
Mr M. Scheinin,
Associate Professor of Law,
University of Helsinki, Counsel.
The Court heard addresses by Mr Lorenzen, Mr Fredman, Mr
Scheinin, Mr Rotkirch and Mr Kosonen, and also replies to its questions.
On 1 October 1996, the Government supplied the Court with
further particulars in reply to a question put at the hearing.
AS TO THE FACTS
circumstances of the case
The applicant is a Finnish national, resident in Finland, and was at the time of the events which gave rise to her complaints under the
Convention married to X, who was not Finnish. They divorced on 22 September 1995.
They are both infected with the human immunodeficiency virus (HIV).
On 10 March 1992 the Helsinki City Court
(raastuvanoikeus, rådstuvurätten) convicted X and sentenced him to a suspended
term of imprisonment for rape on O. on 12 December 1991. The City Court held
the trial in camera and ordered that the documents submitted in the case remain
confidential for a certain period.
On 19 March 1992 X was informed of the results of a blood
test performed on 6 March 1992, indicating that he was HIV-positive.
B. Further complaints of sexual offences lodged against X
In early March 1992, following a complaint of a sexual
offence lodged by M., the police opened an investigation into attempted
manslaughter, suspecting X of having deliberately subjected M. to a risk of
infection with HIV on 1 March.
According to the facts as established by the Commission, during
a police interview on 5 March 1992 M. identified X as the perpetrator and the
police informed her that X’s spouse, the applicant, was HIV-positive. On 10
April 1992, the police advised M. that X was also infected.
At the hearing before the Court the Government disputed the
Commission’s finding that the police had informed M. that the applicant was an
HIV carrier. The Delegate replied that the finding had been based on
corroborative evidence in the police investigation record and the minutes of
the ensuing proceedings before the City Court (see paragraph 19 below).
M.’s boyfriend T. met the applicant in mid-March 1992 and
asked her whether her husband was an HIV carrier. On 6 April 1992 T. telephoned
her and cited passages from confidential court documents relating to the trial
mentioned in paragraph 10 above.
On 14 April T. was interviewed by the police as to the content
of this conversation.
On 7 April 1992 the police attempted to interview the
applicant but, as she was married to X, she relied on her right under Finnish
law not to give evidence against her spouse (chapter 17, Article 20 para. 1, of
the Code of Judicial Procedure (oikeudenkäymiskaari, rättegångsbalk)).
On 22 April 1992 the public prosecutor charged X with
sexual assault on M. On 20 May 1992 M. brought a charge against X of attempted
On 10 September 1992, following complaints of rape lodged
by P.-L. and P., X was arrested and detained on remand, on suspicion of
attempted manslaughter by having raped the complainants earlier that month and
thereby deliberately subjected them to a risk of HIV infection.
On 14 September 1992 the police interviewed the applicant
but she again refused to give evidence against her spouse. She feared that the
documents in the case, including any statement she made, would not remain
On 18 September 1992 R. lodged a complaint with the
police against X for rape committed on 19 December 1991. The police officer who
recorded the complaint added to the record a statement that the applicant had
already been found to be HIV-positive in 1990.
The Government submitted at the Court’s hearing that it was R.
who had told this to the police.
The police opened an investigation into attempted manslaughter
in this case also.
On 7 October and 2 December 1992 and 24 March 1993, the public
prosecutor read out in court charges against X of attempted manslaughter in
respect of offences committed against M. on 1 March 1992, against P. on
10 September 1992 and against P.-L. on 5 and 6 September 1992. Such
charges were also brought by P.-L. on 16 December 1992 and by R. on 19 May
1993 in relation to offences committed respectively on 31 August 1992 and 19
C. Orders obliging the applicant’s doctors and
psychiatrist to give evidence
On 22 April 1992, at the City Court’s first hearing, held
in public, X refused to reply to a question put by M.’s counsel as to whether
the applicant was also an HIV carrier.
At a further hearing on 6 May 1992, the City Court decided at
the parties’ request that the case should be heard in camera. M. confirmed that
she had been informed by the police that the applicant was HIV-positive and T.
gave evidence on the content of his telephone conversation with the applicant
on 6 April 1992 (see paragraph 13 above).
On 18 May 1992 and with X’s consent, L., senior doctor at
the hospital where X and the applicant had been treated, transmitted copies of
X’s medical records to the public prosecutor. These had been edited so as to
omit all references to the applicant.
The City Court summoned the applicant to appear before it
as a witness on 20 May 1992, but she again relied on her right not to give
evidence in a case concerning her husband.
On 27 May 1992 M.’s counsel informed the public
prosecutor that the copies of X’s medical records appeared to be incomplete. That
same day the public prosecutor asked the police to obtain statements from
senior doctor L. and any other doctors who had been treating X, whether as
experts or ordinary witnesses, in order to obtain information from them on when
X had become aware of his HIV infection.
On 12 August 1992, despite his objections, the City Court
ordered senior doctor L. to give evidence. He disclosed to the court medical
data concerning the applicant which had been omitted from the copies of X’s
medical records referred to in paragraph 20 above.
The City Court, by way of an interim measure, ordered that the
court file, including the transcripts of senior doctor L.’s evidence, be kept
At the hearings of the City Court on 23 September and
18 November 1992, X refused to answer a question put by counsel for the
complainants (M., P.-L., P. and R.) as to whether the applicant was
HIV-positive. On 30 December 1992, counsel asked him when he had become aware
that she was infected. However, X again refused to answer.
On 23 September 1992 senior doctor L. complained to the
parliamentary ombudsman (eduskunnan oikeusasiamies, riksdagens
justitieombudsman) about the court decision ordering him to give evidence. In
an opinion of 5 February 1993 the parliamentary ombudsman expressed the view
that the domestic law had not been violated and that the City Court had
properly balanced the public interest in investigating crime against the
applicant’s interests in protecting the confidentiality of the information in
At a court hearing on 27 January 1993, Dr K., who had
also treated the applicant, was, despite his objections, required to give
evidence as a witness for the prosecution and to disclose information about the
applicant. He did so.
On 6 February 1993 the police interviewed Dr S.V. as an
expert. He provided them with general information on HIV infection and
On 10 February 1993 the public prosecutor requested the
police to interview the applicant’s doctors as witnesses in the investigation
into the charges against X of attempted manslaughter (see paragraph 18 above).
However, since all the doctors concerned refused, the matter had to be referred
to the City Court.
Despite his renewed objections, senior doctor L. was
again heard as a prosecution witness at the City Court’s hearing of 3 March
1993. He once again disclosed information about the applicant. Before giving
evidence he read out a letter dated 23 February 1993 which the applicant had
sent him. It stated:
"... The case concerns criminal charges against my husband
which are considered to outweigh a doctor’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 give evidence. In your
capacity as a doctor 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 give evidence against my husband ...
... I therefore request you to refer to these points, when you
are being asked to give evidence in matters which concern only me. It is my
opinion that you should not be obliged to give evidence in those matters and
that the charges should be dealt with in such a way that I am not in any way
forced to take part in the establishment of the [facts]. [I]
am under no obligation to do so ..."
In the course of three hearings on 17 March, 7 April and
5 May 1993, the City Court heard evidence from the applicant’s psychiatrist,
Dr K.R., and a number of medical doctors who had treated her, namely
Drs V., S.-H., S., K., T., R. and apparently also Dr J.S. It also heard Dr
S.V., who had interviewed Z for research purposes. The prosecution had called
them as witnesses and the court had ordered them to give evidence, although
they had objected to doing so.
At the hearing on 17 March, Dr D. confirmed that a blood test
performed in August 1990 had shown that the applicant was HIV-positive.
At the hearing on 5 May 1993 the applicant agreed to give
evidence since the matters which related to her had already been dealt with by
the City Court in other ways. In her evidence she stated amongst other things
that she had not been infected with HIV by X.
D. Seizure of medical records and their
inclusion in the investigation file
On 8 and 9 March 1993 the police carried out a search at
the hospital where the applicant and X had occasionally been treated. The
police seized all the records concerning the applicant and appended copies of
these to the record of the investigation concerning the charges against X of
attempted manslaughter. These measures had been ordered by the prosecution.
After photocopying the records the police returned them to the hospital.
The seized records comprised some thirty documents including
the following statements:
25 September 1990: [The applicant was] found to be HIV-positive
at 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, whom
she thinks is [HIV]-negative.
5 June 1991: ... [The applicant’s husband] completely denies
that he might have an HIV infection ...
7 June 1991: ... According to [the applicant], [her] husband
probably has an HIV infection too but [he] has not gone to be tested ...
23 December 1991: ... [The applicant’s husband] has not gone
for HIV tests and is of the opinion that he is not a carrier of the virus
The police also seized results from a large number of
laboratory tests and examinations concerning matters other than the existence
of HIV in the applicant’s blood, including information about her previous
illnesses, her mental state and a survey into her quality of life based on a
On 10 March 1993 the City Court decided to include the copies
of the seized records in its case file. On the same day it heard Dr S.V. as an
expert called by the prosecution.
E. Conviction of X by the City Court and appeals
to the Helsinki Court of Appeal
On 19 May 1993 the City Court, amongst other things,
convicted X on three counts of attempted manslaughter committed on 1 March,
31 August and 10 September 1992 but dismissed the charge of attempted
manslaughter for the offence committed on 19 December 1991 and, as regards the
latter, convicted him of rape instead. The City Court sentenced him to terms of
imprisonment totalling seven years.
The City Court published the operative part of the judgment, an
abridged version of its reasoning and an indication of the law which it had
applied in the case. The City Court ordered that the full reasoning and the
documents in the case be kept confidential for ten years. Both the complainants
as well as X had requested a longer period of confidentiality.
The complainants, X and the prosecution all appealed
against the City Court’s judgment to the Helsinki Court of Appeal (hovioikeus,
At a hearing in camera before the Court of Appeal on 14
October 1993, all the appellants requested that the duration of the
confidentiality order be extended; an extension to thirty years was discussed.
X’s lawyer also informed the court about the applicant’s wish that the order be
In a judgment of 10 December 1993, a copy of which was made
available to the press (see paragraph 43 below), the Court of Appeal, inter
alia, upheld the conviction of X on three counts of attempted manslaughter and,
in addition, convicted him on two further such counts related to offences
committed on 19 December 1991 and 6 September 1992. It increased his total
sentence to eleven years, six months and twenty days’ imprisonment.
As regards the two additional counts of attempted manslaughter,
the judgment stated:
"... 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 denied having undergone any HIV
examination since being 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 infected with HIV prior to receiving the results of the
test on 19 March 1992.
[X] and [the applicant - mentioned by her first names and
family name] got married on 12 April 1990. On 31 August 1990 [the applicant]
was found to be an HIV carrier. When she gave evidence before the City Court,
[she] said that she had informed X of this finding at the end of 1990. In the
Court of Appeal, X said that the applicant had already informed him about her
disease before he came to Finland in January 1991. [He] also said that while
they were both living in Africa [the applicant] had been suffering from some
undefined disease. [She] had then also suspected that she might have become
contaminated with HIV but her infection had only been discovered after [she]
had returned to Finland.
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 particular reason to suspect that the infection had been
transmitted through their sexual intercourse.
According to [Dr J.S.], a witness before the City Court, [X]
must, on the basis of the symptoms of his disease, be considered to have been
infected with HIV at least a year before the blood test performed in March 1992
... According to [Dr S.V.], the disease with symptoms of fever which, according
to [the applicant’s] medical 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. Regard being had to the fact that, when she contracted
[her] disease with symptoms of fever 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
an HIV carrier, the Court of Appeal finds it likely that she contracted 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 by December 1991. The fact
that [he] nevertheless chose not to undergo any HIV examinations other than
those referred to above shows that his attitude towards the possibility that
others might be contaminated [with HIV] was at best 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 that he had the disease. When
assessing [X’s] intent, his conduct must therefore be viewed in the same way on
all the counts of attempted manslaughter with which he has been charged.
It has been shown in this case that, on the basis of current
knowledge, an HIV infection is lethal. [X] has admitted that, before arriving
in Finland, he had already become familiar with the nature of [this] disease
and the ways in which it could spread. Having regard also 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] was familiar
with the significant risk of contamination and the lethal effects of [the
According to [senior doctor L.] and [Dr S.V.], who were called
as witnesses, the disease may spread through a single act of sexual intercourse
... X must thus have realised that his acts entailed, as a probable
consequence, subjecting [the complainants] to a risk that they would 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 risk of contamination.
... [X] must therefore be considered to have
committed attempted manslaughter ... on 19 December 1991 and 6 September 1992
The Court of Appeal in addition upheld the City Court’s
decision that the case documents should remain confidential for a period of ten
On 26 September 1994 the Supreme Court (korkein oikeus,
högsta domstolen) refused to grant X leave to appeal.
F. Application to the Supreme Court for an order
quashing or reversing the Court of Appeal’s judgment
On 19 May 1995 the applicant applied to the Supreme Court
for an order quashing (poistaa, undanröja) the Court of Appeal’s judgment in so
far as it permitted the information and material about her to become available
to the public as from 2002. In her view, the Court of Appeal’s failure to hear
her submissions before deciding whether and for how long the relevant medical
records should be kept confidential amounted to a procedural error. That part
of its judgment had been prejudicial to her.
In the alternative, she applied for an order reversing (purkaa,
återbryta) the Court of Appeal’s judgment, on the grounds that it had
manifestly been based on an incorrect application of the law and was
incompatible with Article 8 of the Convention (art. 8) in that it was neither
"in accordance with the law" nor "necessary in a democratic
In the event that the Court of Appeal’s judgment be quashed or
reversed, the applicant requested that the matter be referred back to the Court
of Appeal, so that she could make submissions.
On 22 May 1995 the applicant requested the Helsinki
Police Department to make enquiries as to who had informed the police that she
was HIV-positive (see paragraph 12 above). She withdrew her request the
On 1 September 1995 the Supreme Court dismissed the
applicant’s application for an order quashing or reversing the Court of Appeal’s
judgment. The first application had been lodged out of time and she did not
have locus standi to make the second.
G. Press coverage of the case
On 15 June 1992 the large-circulation evening newspaper
Ilta-Sanomat reported X’s trial, stating that he was infected with HIV and that
it was not yet certain whether the applicant was also infected, as she had
refused to give evidence.
On 9 April 1993 the leading daily Helsingin Sanomat
reported the seizure of the applicant’s medical records under the headline
"Prosecutor obtains medical records of wife of man accused of HIV
rapes". The article stated that the wife of X, whose first name and family
name were mentioned in full, was a patient in a hospital unit treating patients
suffering from HIV infection.
The Court of Appeal’s judgment of 10 December 1993 was
reported by various newspapers, including Helsingin Sanomat which, after
receiving it by fax from the Court of Appeal, published an article on 16
December 1993. The article stated that the conviction had been based on the
statement of "[X]’s Finnish wife", while mentioning his name in full;
in addition, it referred to the Court of Appeal’s finding that the applicant
II. Relevant domestic law
A. Obligation to report contagious
diseases and confidentiality of medical records
Under the Contagious Diseases Act 1986 and implementing
decree (tartuntatautilaki 583/86 ja -asetus 786/86, lag 583/86 och förordning
786/86 om smittsamma sjukdomar), a person who is suffering from a disease such
as infection with HIV or who it is found might have contracted such a disease
must, on request, inform his or her doctor of the likely source of
contamination (section 22 (2) of the Act and section 2 of the decree).
Under the Patients’ Status and Rights Act 1992 (laki
potilaan asemasta ja oikeuksista, lag om patientens ställning och rättigheter
785/92) which entered into force on 1 May 1993, medical records must be kept
confidential. Information may only be disclosed to a third party with the patient’s
written consent. It may nevertheless be disclosed to, among others, a court of
law, another authority or an association which has been granted access thereto
by law (section 13).
B. A medical doctor’s rights and obligations with respect to
confidentiality when giving evidence
Under chapter 17, Article
23 para. 1 (3), of the Code of Judicial Procedure, a doctor of medicine may
not, without his or her patient’s consent, give information as a witness which
he or she has obtained in his or her professional capacity and which, because
of its nature, should be kept confidential.
However, paragraph 3 provides that a doctor may be ordered to
give evidence as a witness in connection with a charge relating to an offence
for which a sentence of at least six years’ imprisonment is prescribed (as is
the case with regard to manslaughter and attempted manslaughter).
In such cases, section 27 (2) of the Pre-trial Investigation
Act 1987 (esitutkintalaki, förundersökningslag 449/87) entitles doctors to give
evidence even during the pre-trial investigation.
Section 28 (1) of that Act provides:
"If a witness manifestly has knowledge about a matter of
importance to the clarification of [a suspect’s] guilt and if he [or she]
refuses to reveal this even though obliged to do so or, under section 27 (2),
entitled to do so, the court may, at the request of the chief investigating
officer, require [the witness] to disclose his knowledge about the matter. In
such cases all or part of the questioning of the witness may take place in
A party to the pre-trial investigation and his counsel may
attend the proceedings in which such a request by the chief investigating
officer is considered and the actual hearing where the witness gives evidence
(section 28 (2)).
C. Seizure of
Chapter 4, section 2 (2), of the Coercive Means of
Criminal Investigation Act 1987 (pakkokinolaki, tvångsmedelslagen 450/87)
"A document shall not be seized for evidential purposes if
it may be presumed to contain information in regard to which a person referred
to in chapter 17, Article 23, of the Code of Judicial Procedure is not allowed
to give evidence at a trial ..., and [provided that] the document is in the
possession of that person or the person for whose benefit the secrecy
obligation has been prescribed. A document may nevertheless be seized if, under
section 27 (2) of the Pre-trial Investigation Act, a person [referred to in
chapter 17, Article 23, of the Code of Judicial Procedure] would have been
entitled or obliged to give evidence in the pre-trial investigation about the
matter contained in the document."
Chapter 4, section 13, of
the Act reads:
"At the request of a person
whom the case concerned, the court shall decide whether the seizure shall
remain in force. A request which has been submitted to the court before its
examination of the charges shall be considered within a week from its reception
by the court. The examination of such a request is, in as far as appropriate,
governed by the provisions in chapter 1, sections 9 and 12, on the examination
of requests for detention on remand. The court shall reserve those with an
interest in the matter an opportunity to be heard, but the absence of anyone
shall not preclude a decision on the issue."
D. Access by the
public to official documents
Under the Publicity of Official
Documents Act 1951 (laki yleisten asiakirjain julkisuudesta, lag om allmänna
handlingars offentlighet 83/51), official documents are in principle public
(section 1). They include not only documents drawn up and issued by an
authority but also documents submitted to an authority and which are in
its possession (section 2 (1)). A pre-trial investigation record, however,
shall not be public until the matter has been brought before a court or the
police investigation has been closed without charges being brought (section 4).
Everyone has access to official public documents (section 6, as
amended by Act no. 739/88). However, medical reports are accessible to the
public only with the consent of the person to whom they relate (section 17). In
the absence of such consent, a party to criminal proceedings shall nevertheless
have access to such documents if they are capable of affecting the outcome of
the case (section 19 (1), as amended by Act no. 601/82).
Documentary evidence obtained during a pre-trial
investigation shall be kept in a record of investigation, if this is considered
necessary for the further consideration of the case. The record shall include
all documents assumed to be of importance and indicate, inter alia, whether
other documentary evidence has been obtained but omitted from the record
(section 40 of the Pre-trial Investigation Act).
If all or part of an oral hearing has been held in camera
or if, during such a hearing, any confidential document or information has been
submitted, the court may decide that all or part of the case material be kept
confidential for up to forty years. The operative part of the judgment and the
legal provisions relied on shall always be made public (section 9 of the
Publicity of Court Proceedings Act 1984 (laki oikeudenkäynnin julkisuudesta,
lag om offentlighet vid rättegång 945/84)).
No separate appeal against a decision concerning the publicity
of proceedings is allowed (section 11). The decision must thus be challenged in
an ordinary appeal lodged by a party to the proceedings.
E. Disclosure of confidential information
Under the 1889 Penal Code
(rikoslaki, strafflag 39/1889), the disclosure of confidential information by a
civil servant or a public employee is a criminal offence (chapter 40, which has
been amended subsequently).
Under the Constitution (Suomen hallitusmuoto,
Regeringsform för Finland 94/19), anyone whose rights have been infringed and
who has suffered damage as a result of an illegal act, or by the negligence, of
a civil servant, is entitled to prosecute the civil servant, or to demand that
he or she be prosecuted, and to claim damages (Article 93 para. 2). Under the
Damage Compensation Act 1974 (vahingonkorvauslaki, skadeståndslag 412/74)
proceedings may also be brought against the State for actions taken by civil
servants (chapters 3 and 4).
A person involved in a pre-trial investigation may be
prohibited, on pain of a fine or a maximum of six months’ imprisonment, from
revealing information concerning third parties which was not previously known
to him or her and which relates to the investigation. Such a prohibition may be
imposed if the disclosure of such information in the course of the investigation
is liable to jeopardise the investigation or to cause harm or be prejudicial to
a party to the investigation or to any third party. Heavier sentences may be
imposed if the disclosure constitutes a separate offence (section 48 of the
Pre-trial Investigation Act).
Under the Publicity of Official Documents Act 1951,
neither parties nor their representatives are allowed to disclose confidential
material which has been made available to them in their capacity as parties to
persons not involved in the proceedings (section 19a). Disclosure in breach of
this rule is punishable by a fine (section 27).
PROCEEDINGS BEFORE THE COMMISSION
In her application to the Commission of
21 May 1993 (no. 22009/93), Mrs Z complained that there had been
violations of her right to respect for private and family life as guaranteed by
Article 8 of the Convention (art. 8) on account, in particular, of (1) the
orders imposed on her doctors and psychiatrist to give evidence and disclose
information about her in the criminal proceedings against her husband; (2) the
seizure of her medical records at the hospital where she had been treated and
their inclusion in their entirety in the investigation file; (3) the decisions
of the competent courts to limit the confidentiality of the trial record to a
period of ten years; and (4) the disclosure of her identity and medical data in
the Court of Appeal’s judgment. She also alleged that, contrary to Article 13
of the Convention (art. 13), she had not been afforded an effective remedy with
respect to her complaints under Article 8 (art. 8).
On 28 February 1995 the Commission declared the application
admissible. In its report of 2 December 1995 (Article 31) (art. 31), it
expressed the unanimous opinion that there had been a violation of Article 8
(art. 8) and that it was not necessary to examine whether there had also been a
violation of Article 13 (art. 13). The full text of the Commission’s opinion is
reproduced as an annex to this judgment.
FINAL SUBMISSIONS TO THE COURT
At the hearing on 29 August 1996 the Government, as they
had done in their memorial, invited the Court to hold that there had been no
violation of the Convention.
On the same occasion the applicant reiterated her request
to the Court, stated in her memorial, to find that there had been violations of
both Article 8 and Article 13 (art. 8, art. 13) and to award her just
satisfaction under Article 50 of the Convention (art. 50).
AS TO THE LAW
I. ALLEGED VIOLATION OF ARTICLE 8 OF THE
CONVENTION (art. 8)
The applicant alleged that she had been a victim of
violations of Article 8 of the Convention (art. 8), which provides:
"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 contested this allegation, whereas the
Commission concluded that there had been a violation of this provision (art.
A. Scope of the issues before the
1. Allegation of leak of medical
In her application to the Commission the applicant
complained, amongst other things, about the failure of the Finnish authorities
to prevent the disclosure by the press of her identity and her medical
condition as an HIV carrier and the termination of her employment contract.
After the Commissions’s decision declaring the application admissible and in
the light of new information obtained in the course of the proceedings before
it, she elaborated on those allegations, maintaining that the information in
question had been leaked by the police or other public authority.
In her memorial to the Court, the applicant sought to clarify
these allegations. She had not intended to complain about the newspaper
coverage or her dismissal, but only about the alleged leak, for which the
respondent State was responsible. This fact on its own gave rise, in her view,
to a violation of Article 8 (art. 8).
The Government, referring to the above clarification,
considered the claim to be devoid of any real content.
The Commission did not find it necessary to examine the
matter on the merits and the Delegate added at the Court’s hearing that the
evidence adduced was incomplete on this point.
Nor does the Court find it established that there had
been a leak of confidential medical data concerning the applicant for which the
respondent State could be held responsible under Article 8 (art. 8).
2. Allegation of discrimination
The applicant also complained before the Court that the
reasoning in the Court of Appeal’s judgment was biased, not only against her
former husband on the grounds of race, but also against her on the grounds of
sex. The interference with her right to respect for her private and family life
had been motivated by the fact that she had been a woman married to a black
person from Africa.
The Government disputed the above contentions. The
applicant had not referred to Article 14 of the Convention (art. 14) in the
proceedings before the Commission, which had not examined any such allegations.
She should be considered barred from pursuing any such claim before the Court.
The Delegate of the Commission did not express any views
on the matter.
In the Court’s view, the applicant’s allegation that she
was subjected to discriminatory treatment does not appear to be an elaboration
of her complaints declared admissible by the Commission; it seems rather to be
a separate and new complaint which is not covered by the Commission’s decision
on admissibility. The Court has therefore no jurisdiction to entertain it (see,
for instance, the Olsson v. Sweden (no. 2) judgment of 27 November 1992,
Series A no. 250, pp. 30-31, para. 75; and the Schuler-Zgraggen v. Switzerland judgment of 24 June 1993, Series A no. 263, p. 20, para. 60).
The Court will therefore confine its examination to the
other matters complained of by the applicant, namely (1) the orders requiring
her doctors to give evidence in the criminal proceedings against her husband,
(2) the seizure of her medical records and their inclusion in the investigation
file, (3) the decision to make the material in question accessible to the
public as from the year 2002 and (4) the disclosure of her identity and medical
condition in the Court of Appeal’s judgment.
B. Whether there was an
interference with the applicant’s right to respect for her private and family
It was undisputed that the various measures complained of
constituted interferences with the applicant’s right to respect for her private
and family life as guaranteed by paragraph 1 of Article 8 of the Convention
(art. 8-1). The Court sees no reason to hold otherwise. It must therefore
examine whether they fulfilled the conditions in paragraph 2 of that Article
C. Whether the interferences were
accordance with the law"
The applicant complained that the four contested measures
all stemmed from the fact that her medical data had been communicated in the
proceedings against X in application of chapter 17, Article 23 para. 3, of the
Code of Judicial Procedure (see paragraph 46 above), which provision was in her
view couched in "dangerously" broad terms. She submitted that that
provision failed to specify the group of persons whose medical information
could be used in criminal proceedings. Nor did the relevant law afford a right
for the persons concerned to be heard prior to the taking of such measures or a
remedy to challenge these. The seizure of medical records and their inclusion
in an investigation file did not even require a court order. Thus the
legislation could not be said to fulfil the requirements of precision and
foreseeability flowing from the expression "in accordance with the
The Court, however, sharing the views of the Commission
and the Government, finds nothing to suggest that the measures did not comply
with domestic law or that the effects of the relevant law were not sufficiently
foreseeable for the purposes of the quality requirement which is implied by the
expression "in accordance with the law" in paragraph 2 of Article 8
2. Legitimate aim
The applicant maintained that the medical data in
question had not been of such importance in the trial against X as to suggest
that the impugned measures had pursued a legitimate aim for the purposes of
paragraph 2 of Article 8 (art. 8-2).
However, the Court is not persuaded by this argument
which is essentially based on an ex post facto assessment by the applicant of
the importance of the evidence concerned for the outcome of the proceedings
against X. What matters is whether, at the time when the contested measures
were taken, the relevant authorities sought to achieve a legitimate aim.
In this respect the Court agrees with the Government and
the Commission that, at the material time, the investigative measures in issue
(see paragraphs 23, 26 and 29-32 above) were aimed at the "prevention of
... crime" and the "protection of the rights and freedoms of
As regards the ten-year limitation on the confidentiality
order, the Court recognises that there is a public interest in ensuring the
transparence of court proceedings and thereby the maintenance of the public’s
confidence in the courts (see paragraphs 33, 35 and 36 above). The limitation
in question would, under Finnish law, enable any member of the public to
exercise his or her right to have access to the case material after the expiry
of the confidentiality order. It could therefore, as suggested by the
Government and the Commission, be said to have been aimed at protecting the
"rights and freedoms of others".
On the other hand, unlike the Government and the Commission,
the Court does not consider that it could be regarded as being aimed at the
prevention of crime.
As to the publication of the applicant’s full name as
well as her medical condition following their disclosure in the Court of Appeal’s
judgment (see paragraph 36 above), the Court, unlike the Government and the
Commission, has doubts as to whether this could be said to have pursued any of
the legitimate aims enumerated in paragraph 2 of Article 8 (art. 8-2). However,
in view of its findings in paragraph 113 below, the Court does not deem it
necessary to decide this issue.
3. "Necessary in a democratic society"
a) Arguments of those appearing before the Court
(i) The applicant and the Commission
The applicant and the Commission were of the view that
her right to respect for her private and family life under Article 8 (art. 8)
had been interfered with in a manner which could not be said to have been
"necessary in a democratic society".
However, their conclusions on this point differed. Whereas the
applicant alleged that each measure on its own constituted a violation of
Article 8 (art. 8), the Commission found a violation by considering them
globally. The Delegate explained that, because of the strong links between the
various measures and their consequences for the applicant, an overall
assessment provided a better basis for the balancing of interests to be
exercised under the necessity test.
There were also certain differences between their respective
arguments. They could be summarised in the following way.
In the applicant’s submission, there was no reasonable
relationship of proportionality between any legitimate aim pursued by the
measures in question and her interest in maintaining the confidentiality of her
identity and her medical condition.
As regards the orders requiring her doctors and psychiatrist to
give evidence, she observed that the conviction of X on five, as opposed to
three, counts of attempted manslaughter had hardly affected the severity of the
sentence and the possibility for the victims of obtaining damages from him. He
would in any event have been sentenced for sexual offences in relation to the
two remaining counts. In view of the obligation of an HIV carrier under Finnish
law to inform his or her doctor of the likely source of the disease (see paragraph
44 above), the contested orders were likely to have deterred potential and
actual HIV carriers in Finland from undergoing blood tests and from seeking
As to the seizure of the medical records and their inclusion in
the investigation file (see paragraphs 31-32 above), a substantial part of this
material had clearly been irrelevant to the case against X and none of it had
contained any information which could have been decisive for determining when X
had become aware of his HIV infection. There were certain isolated annotations
in the records of statements by Z concerning X, but their importance was only
theoretical. The City Court was under no obligation to admit the filing of all
of the evidence derived from the seizure.
Against this background, there could be no justification for
the decision to make the trial record accessible to the public as early as ten
years later, in the year 2002.
Nor had it been "necessary" for the Court of Appeal
to disclose her identity and details of her medical condition in its judgment
and to fax this to Finland’s largest newspaper (see paragraph 43 above), which
measure had been particularly damaging to her private and professional life. At
the Court of Appeal’s hearing, X’s lawyer had made it entirely clear that Z did
not wish any information about her to be published.
Unlike the applicant, the Commission was satisfied that
the measures in issue were justified on their merits in so far as the competent
national authorities had merely sought to obtain evidence on when X had become
aware of his HIV infection. It had regard to the weighty public and private
interests in pursuing the investigation of the offences of attempted
On the other hand, the Commission, like the applicant, was of the
opinion that the measures in question had not been accompanied by sufficient
safeguards for the purposes of paragraph 2 of Article 8 (art. 8-2).
In the first place, the Commission observed that the
applicant had been given no prior warning of the first order to senior doctor
L. to give evidence (see paragraph 23 above), nor of the fact that her medical
records were to be seized and that copies thereof were to be included in the
investigation file (see paragraphs 31-32 above). As she had not been properly
informed of the various investigatory measures in advance, she had not been
able to object to them effectively. Also, in this connection, the applicant
pointed out that, not being a party to the proceedings and the court hearings
being held in camera (see paragraph 23 above), she had had no means of
appearing before the court to state her views.
It was not clear why it had been necessary to hear all the
doctors (see paragraphs 23, 26, 29 and 30 above) and what, if any, efforts had
been made to limit the questioning in such a way as to minimise the
interference complained of.
Moreover, there was no indication that the police had
exercised their discretion to protect at least some of the information
emanating from the applicant’s medical records, notably by excluding certain
material from the investigation file.
On this point, the applicant also contended that she had not
been afforded a remedy to challenge the seizure of the records or their
inclusion in the file.
Furthermore, whilst it was possible under Finnish law to
keep court records confidential for up to forty years (see paragraph 52 above)
and all the parties to the proceedings had requested thirty years, the City
Court had decided to limit the order to ten years (see paragraph 33 above),
which decision had been upheld by the Court of Appeal (see paragraph 36 above).
Any possibility which the applicant might have had to ask the
Supreme Court to quash the confidentiality order would not have provided her
with an adequate safeguard. There was no provision entitling her to be heard by
the Court of Appeal and all the parties who had been heard on the matter had
unsuccessfully asked for an extension of the order (see paragraph 35 above).
In addition, the Court of Appeal, by having the reasoning
of its judgment published in full, had disclosed the applicant’s identity and
her HIV infection (see paragraph 36 above). She had had no effective means of
opposing or challenging this measure.
(ii) The Government
The Government contested the conclusions reached by the
applicant and the Commission. In the Government’s opinion, the various measures
complained of were all supported by relevant and sufficient reasons and, having
regard to the safeguards which existed, were proportionate to the legitimate
aims pursued. They invited the Court to examine each of the measures
In the Government’s submission, both the taking of
evidence from the applicant’s doctors and psychiatrist and the production of
her medical records at the trial had been vital in securing X’s conviction and
sentence on two of the five counts of attempted manslaughter (see paragraphs 33
and 36 above). The purpose of these measures had been confined to seeking
information on when X had become aware of his HIV infection or had reason to
suspect that he was carrying the disease.
They further maintained that it had been necessary to
hear all the doctors because of the nature of the information sought, the
seriousness of the offences in question and what was at stake for the accused.
The orders requiring the doctors and the psychiatrist to give
evidence had been taken by the City Court and the applicant’s objections
thereto had been drawn to its attention on 3 March 1993, when senior doctor L.
had read out her letter to the court (see paragraph 29 above).
Moreover, the Government argued that, since all the
records had had a potential relevance to the question as to when X had become
aware of or had reason to suspect his HIV infection, it had been reasonable that
the material in its entirety be seized and included in the investigation file.
Having regard to the variety of symptoms of an HIV infection and the difficulty
of judging whether an illness had been HIV-related, it had been essential that
the competent courts be able to examine all the material. To exclude any of it
would have given rise to doubts as to its reliability.
In addition, the Government pointed out that the applicant
could have challenged the seizure under section 13 of chapter 4 of the Coercive
Means of Criminal Investigation Act 1987 (see paragraph 49 above).
Bearing in mind the public interest in publicity of court
proceedings, the Government considered it reasonable in the circumstances of
the case to limit the confidentiality order to ten years. When heard as a
witness, Mrs Z had not expressly requested that her medical data remain
confidential and that she should not be identified in the Court of Appeal’s
The reference to the applicant as X’s wife in the Court
of Appeal’s judgment had been an indispensable element of its reasoning and
conclusion (see paragraph 36 above). The fact that the judgment had disclosed
her name had been of no significance to her interests. As with the victims of
the offences committed by X, it would have been possible to omit mentioning her
name, had she expressed any wish to this effect.
Finally, in addition to the above safeguards, the
Government pointed to the civil and criminal remedies for breach of
confidentiality by civil servants which had been available to the applicant
under Finnish law and to the possibility of lodging a petition with the
parliamentary ombudsman or with the Chancellor of Justice (see paragraphs 53-56
In the light of the foregoing, the Government were of the
view that the Finnish authorities had acted within the margin of appreciation
left to them in the matters in issue and that, accordingly, none of the
contested measures had given rise to a violation of Article 8 of the Convention
(b) The Court’s assessment
In determining whether the impugned measures were
"necessary in a democratic society", the Court will consider whether,
in the light of the case as a whole, the reasons adduced to justify them were
relevant and sufficient and whether the measures were proportionate to the
legitimate aims pursued.
In this connection, the Court will take into account that
the protection of personal data, not least medical data, is of fundamental
importance to a person’s enjoyment of his or her right to respect for private
and family life as guaranteed by Article 8 of the Convention (art. 8).
Respecting the confidentiality of health data is a vital principle in the legal
systems of all the Contracting Parties to the Convention. It is crucial not
only to respect the sense of privacy of a patient but also to preserve his or
her confidence in the medical profession and in the health services in general.
Without such protection, those in need of medical assistance
may be deterred from revealing such information of a personal and intimate
nature as may be necessary in order to receive appropriate treatment and, even,
from seeking such assistance, thereby endangering their own health and, in the
case of transmissible diseases, that of the community (see Recommendation no. R
(89) 14 on "The ethical issues of HIV infection in the health care and
social settings", adopted by the Committee of Ministers of the Council of
Europe on 24 October 1989, in particular the general observations on confidentiality
of medical data in paragraph 165 of the explanatory memorandum).
The domestic law must therefore afford appropriate safeguards
to prevent any such communication or disclosure of personal health data as may
be inconsistent with the guarantees in Article 8 of the Convention (art. 8)
(see, mutatis mutandis, Articles 3 para. 2 (c), 5, 6 and 9 of the Convention
for the Protection of Individuals with Regard to Automatic Processing of
Personal Data, European Treaty Series no. 108, Strasbourg, 1981).
The above considerations are especially valid as regards
protection of the confidentiality of information about a person’s HIV
infection. The disclosure of such data may dramatically affect his or her
private and family life, as well as social and employment situation, by
exposing him or her to opprobrium and the risk of ostracism. For this reason it
may also discourage persons from seeking diagnosis or treatment and thus
undermine any preventive efforts by the community to contain the pandemic (see
the above-mentioned explanatory memorandum to Recommendation no. R (89) 14,
paragraphs 166-68). The interests in protecting the confidentiality of such
information will therefore weigh heavily in the balance in determining whether
the interference was proportionate to the legitimate aim pursued. Such
interference cannot be compatible with Article 8 of the Convention (art. 8)
unless it is justified by an overriding requirement in the public interest.
In view of the highly intimate and sensitive nature of information
concerning a person’s HIV status, any State measures compelling communication
or disclosure of such information without the consent of the patient call for
the most careful scrutiny on the part of the Court, as do the safeguards
designed to secure an effective protection (see, mutatis mutandis, the Dudgeon
v. the United Kingdom judgment of 22 October 1981, Series A no. 45, p. 21,
para. 52; and the Johansen v. Norway judgment of 7 August 1996, Reports of
Judgments and Decisions 1996-III, pp. 1003-04, para. 64).
At the same time, the Court accepts that the interests of
a patient and the community as a whole in protecting the confidentiality of
medical data may be outweighed by the interest in investigation and prosecution
of crime and in the publicity of court proceedings (see, mutatis mutandis,
Article 9 of the above-mentioned 1981 Data Protection Convention), where such
interests are shown to be of even greater importance.
It must be borne in mind in the context of the
investigative measures in issue that it is not for the Court to substitute its
views for those of the national authorities as to the relevance of evidence
used in the judicial proceedings (see, for instance, the above-mentioned
Johansen judgment, pp. 1006-07, para. 73).
As to the issues regarding access by the public to
personal data, the Court recognises that a margin of appreciation should be
left to the competent national authorities in striking a fair balance between
the interest of publicity of court proceedings, on the one hand, and the
interests of a party or a third person in maintaining the confidentiality of
such data, on the other hand. The scope of this margin will depend on such
factors as the nature and seriousness of the interests at stake and the gravity
of the interference (see, for instance, the Leander v. Sweden judgment of 26 March
1987, Series A no. 116, p. 25, para. 58; and, mutatis mutandis, the Manoussakis
and Others v. Greece judgment of 26 September 1996, Reports 1996-IV, p. 1364,
It is in the light of the above considerations that the
Court will examine the contested interferences with the applicant’s right to
respect for her private and family life.
Since the various measures were different in character, pursued
distinct aims and infringed upon her private and family life to a different
extent, the Court will examine the necessity of each measure in turn.
Before broaching these issues, the Court observes at the
outset that, although the applicant may not have had an opportunity to be heard
directly by the competent authorities before they took the measures, they had
been made aware of her views and interests in these matters.
All her medical advisers had objected to the various orders to
testify and had thus actively sought to protect her interests in maintaining
the confidentiality of her medical data. At an early stage, her letter to
senior doctor L., urging him not to testify and stating her reasons, had been
read out to the City Court (see paragraphs 23, 26, 29 and 30 above).
In the above-mentioned letter, it was implicit, to say the
least, that she would for the same reasons object also to the communication of
her medical data by means of seizure of her medical records and their inclusion
in the investigation file, which occurred a few days later (see paragraphs 31
and 32 above). According to the applicant, her lawyer had done all he could to
draw the public prosecutor’s attention to her objections to her medical data
being used in the proceedings.
Moreover, before upholding the ten-year limitation on the
confidentiality order, the Court of Appeal had been informed by X’s lawyer of
the applicant’s wish that the period of confidentiality be extended (see
paragraph 35 above).
In these circumstances, the Court is satisfied that the
decision-making process leading to the measures in question was such as to take
her views sufficiently into account for the purposes of Article 8 of the
Convention (art. 8) (see, mutatis mutandis, the W. v. the United Kingdom
judgment of 8 July 1987, Series A no. 121, pp. 28-29, paras. 62-64; and the
above-mentioned Johansen judgment, pp. 1004-05, para. 66). Thus, the procedure
followed did not as such give rise to any breach of that Article (art. 8).
In this connection, the Court takes note of the fact that,
according to the Government’s submissions to the Court, it would have been
possible for the applicant to challenge the seizure before the City Court (see
paragraph 49 above). Also, as is apparent from the Supreme Court’s decision of
1 September 1995, she was able under Finnish law to apply - by way of an
extraordinary procedure - for an order quashing the Court of Appeal’s judgment
in so far as it permitted the information and material about her to be made
accessible to the public as from 2002 (see paragraph 40 above).
(i) The orders requiring the applicant’s doctors and psychiatrist
to give evidence
As regards the orders requiring the applicant’s doctors
and psychiatrist to give evidence, the Court notes that the measures were taken
in the context of Z availing herself of her right under Finnish law not to give
evidence against her husband (see paragraphs 14, 17 and 21 above). The object
was exclusively to ascertain from her medical advisers when X had become aware
of or had reason to suspect his HIV infection. Their evidence had the
possibility of being at the material time decisive for the question whether X
was guilty of sexual offences only or in addition of the more serious offence
of attempted manslaughter in relation to two offences committed prior to 19
March 1992, when the positive results of the HIV test had become available. There
can be no doubt that the competent national authorities were entitled to think
that very weighty public interests militated in favour of the investigation and
prosecution of X for attempted manslaughter in respect of all of the five
offences concerned and not just three of them.
The Court further notes that, under the relevant Finnish
law, the applicant’s medical advisers could be ordered to give evidence
concerning her without her informed consent only in very limited circumstances,
namely in connection with the investigation and the bringing of charges for
serious criminal offences for which a sentence of at least six years’
imprisonment was prescribed (see paragraph 46 above). Since they had refused to
give evidence to the police, the latter had to obtain authorisation from a
judicial body - the City Court - to hear them as witnesses (see paragraph 28
above). The questioning took place in camera before the City Court, which had
ordered in advance that its file, including transcripts of witness statements,
be kept confidential (see paragraphs 19 and 23 above). All those involved in
the proceedings were under a duty to treat the information as confidential. Breach
of their duty in this respect could lead to civil and/or criminal liability
under Finnish law (see paragraphs 53-56 above).
The interference with the applicant’s private and family life
which the contested orders entailed was thus subjected to important limitations
and was accompanied by effective and adequate safeguards against abuse (see,
for instance, the Klass and Others v. Germany judgment of 6 September 1978,
Series A no. 28, pp. 23-24, paras. 49-50; and the Leander judgment cited above,
p. 25, para. 60).
In this connection, the Court sees no reason to question the
extent to which the applicant’s doctors were ordered to give evidence (see
paragraphs 23, 26 and 30 above). As indicated above, the assessment of the
expediency of obtaining evidence is primarily a matter for the national
authorities and it is not for the Court to substitute its views for theirs in
this regard (see paragraph 98 above).
In view of the above factors, in particular the
confidential nature of the proceedings against X, as well as their highly
exceptional character, the Court is not persuaded by the applicant’s argument
that the various orders to give evidence were likely to have deterred potential
and actual HIV carriers in Finland from undergoing blood tests and from seeking
In the light of the foregoing, the Court finds that the
various orders requiring the applicant’s medical advisers to give evidence were
supported by relevant and sufficient reasons which corresponded to an
overriding requirement in the interest of the legitimate aims pursued. It is
also satisfied that there was a reasonable relationship of proportionality
between those measures and aims. Accordingly, there has been no violation of
Article 8 (art. 8) on this point.
(ii) Seizure of the applicant’s medical records and their
inclusion in the investigation file
The seizure of the applicant’s medical records and their
inclusion in the investigation file were complementary to the orders compelling
the medical advisers to give evidence. Like the latter measures, the former
were taken in the context of the applicant refusing to give evidence against
her husband and their object was to ascertain when X had become aware of his
HIV infection or had reason to suspect that he was carrying the disease. They
were based on the same weighty public interests (see paragraph 102 above).
Furthermore, they were subject to similar limitations
and safeguards against abuse (see paragraph 103 above). The substantive
conditions on which the material in question could be seized were equally
restrictive (see paragraphs 46 and 48 above). More importantly, the material
had been submitted in the context of proceedings held in camera, and the City
Court had decided that the case documents should be treated as confidential,
which measure was protected largely by the same rules and remedies as the
witness statements (see paragraphs 23 and 53-56 above).
It is true, however, that the seizure, unlike the taking
of evidence from the doctors and psychiatrist, had not been authorised by a
court but had been ordered by the prosecution (see paragraph 31 above).
Nevertheless, under the terms of the relevant provision in
chapter 4, section 2 (2), of the Coercive Means of Criminal Investigation Act,
a condition for the seizure of the medical records concerned was that the
applicant’s doctors would be "entitled or obliged to give evidence in the
pre-trial investigation about the matter contained in the document[s]"
(see paragraph 48 above). The legal conditions for the seizure were thus
essentially the same as those for the orders on the doctors to give evidence.
Furthermore, prior to the seizure of the documents, the City
Court had already decided that at least two of the doctors should be heard,
whilst it required all the other doctors to give evidence shortly afterwards
(see paragraphs 23, 26 and 30 above). The day following the seizure, the City
Court, which had power to exclude evidence, decided to include all the material
in question in its case file (see paragraph 32 above). In addition, as already
noted, the applicant had the possibility of challenging the seizure before the
City Court (see paragraphs 49 and 101 above).
Therefore, the Court considers that the fact that the seizure
was ordered by the prosecution and not by a court cannot of itself give rise to
any misgivings under Article 8 (art. 8).
As to the applicant’s submission that parts of the
material had been irrelevant and that none of it had been decisive in the trial
against X, the Court reiterates that the expediency of the adducing and
admission of evidence by national authorities in domestic proceedings is
primarily a matter to be assessed by them and that it is normally not within
its province to substitute its views for theirs in this respect (see paragraph
98 above). Bearing in mind the arguments advanced by the Government as to the
variety of data which could have been relevant for the determination of when X
was first aware of or had reason to suspect his HIV infection (see paragraph 89
above), the Court sees no reason to doubt the assessment by the national
authorities on this point.
Therefore, the Court considers that the seizure of the
applicant’s medical records and their inclusion in the investigation file were
supported by relevant and sufficient reasons, the weight of which was such as
to override the applicant’s interest in the information in question not being
communicated. It is satisfied that the measures were proportionate to the
legitimate aims pursued and, accordingly, finds no violation of Article 8 (art.
8) on this point either.
(iii) Duration of the order to maintain the
medical data confidential
As regards the complaint that the medical data in issue
would become accessible to the public as from 2002, the Court notes that the
ten-year limitation on the confidentiality order did not correspond to the
wishes or interests of the litigants in the proceedings, all of whom had
requested a longer period of confidentiality (see paragraph 35 above).
The Court is not persuaded that, by prescribing a period
of ten years, the domestic courts attached sufficient weight to the applicant’s
interests. It must be remembered that, as a result of the information in issue
having been produced in the proceedings without her consent, she had already
been subjected to a serious interference with her right to respect for her
private and family life. The further interference which she would suffer if the
medical information were to be made accessible to the public after ten years is
not supported by reasons which could be considered sufficient to override her
interest in the data remaining confidential for a longer period. The order to
make the material so accessible as early as 2002 would, if implemented, amount
to a disproportionate interference with her right to respect for her private
and family life, in violation of Article 8 (art. 8).
However, the Court will confine itself to the above conclusion,
as it is for the State to choose the means to be used in its domestic legal
system for discharging its obligations under Article 53 of the Convention (art.
53) (see the Marckx v. Belgium judgment of 13 June 1979, Series A no. 31, pp.
25-26, para. 58).
(iv) Publication of
the applicant’s identity and health condition in the Court of Appeal’s judgment
Finally, the Court must examine whether there were
sufficient reasons to justify the disclosure of the applicant’s identity and
HIV infection in the text of the Court of Appeal’s judgment made available to
the press (see paragraphs 36 and 43 above).
Under the relevant Finnish law, the Court of Appeal had the
discretion, firstly, to omit mentioning any names in the judgment permitting
the identification of the applicant and, secondly, to keep the full reasoning
confidential for a certain period and instead publish an abridged version of
the reasoning, the operative part and an indication of the law which it had
applied (see paragraph 52 above). In fact, it was along these lines that the
City Court had published its judgment, without it giving rise to any adverse
comment (see paragraph 33 above).
Irrespective of whether the applicant had expressly requested
the Court of Appeal to omit disclosing her identity and medical condition, that
court was informed by X’s lawyer about her wishes that the confidentiality
order be extended beyond ten years (see paragraph 35 above). It evidently
followed from this that she would be opposed to the disclosure of the
information in question to the public.
In these circumstances, and having regard to the considerations
mentioned in paragraph 112 above, the Court does not find that the impugned
publication was supported by any cogent reasons. Accordingly, the publication
of the information concerned gave rise to a violation of the applicant’s right
to respect for her private and family life as guaranteed by Article 8 (art. 8).
The Court thus reaches the conclusions that there has
been no violation of Article 8 of the Convention (art. 8) (1) with respect to
the orders requiring the applicant’s medical advisers to give evidence or (2)
with regard to the seizure of her medical records and their inclusion in the
On the other hand, it finds (3) that making the medical data
concerned accessible to the public as early as 2002 would, if implemented, give
rise to a violation of that Article (art. 8) and (4) that there has been a
violation thereof (art. 8) with regard to the publication of the applicant’s
identity and medical condition in the Court of Appeal’s judgment.
II. ALLEGED VIOLATION OF
ARTICLE 13 OF THE CONVENTION (art. 13)
The applicant also alleged that the lack of remedies to
challenge each of the measures complained of under Article 8 (art. 8) gave rise
to violations of Article 13 of the Convention (art. 13), which reads:
"Everyone whose rights and freedoms as set forth in [the]
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 contested this view, whereas the
Commission, having regard to its finding with regard to the complaints under
Article 8 (art. 8), did not consider it necessary to examine whether there had
also been a violation of Article 13 (art. 13).
The Court, having taken these matters into account in
relation to Article 8 (art. 8) (see paragraphs 101, 103, 107 and 109 above),
does not find it necessary to examine them under Article 13 (art. 13).
III. APPLICATION OF ARTICLE
50 OF THE CONVENTION (art. 50)
The applicant sought just satisfaction
under Article 50 of the Convention (art. 50), which reads:
"If the Court finds that a decision or a measure taken by
a legal authority or any other authority of a High Contracting Party is
completely or partially in conflict with the obligations arising from the ...
Convention, and if the internal law of the said Party allows only partial
reparation to be made for the consequences of this decision or measure, the
decision of the Court shall, if necessary, afford just satisfaction to the
The applicant did not make any claim for pecuniary
damage but requested the Court to award her 2 million Finnish marks (FIM) in compensation
for non-pecuniary damage sustained as a result of the disclosure of her medical
data, which had been widely disseminated by the press.
In the view of the Government the finding of a violation
would in itself constitute adequate just satisfaction. In any event, an award
to the applicant should not reach the level of the awards made in respect of
the four victims of the offences committed by X, the highest of which had been
The Delegate of the Commission did not offer any
comments on the matter.
The Court finds it established that the applicant must
have suffered non-pecuniary damage as a
result of the disclosure of her identity and medical condition in the Court of Appeal’s judgment. It considers that
sufficient just satisfaction would not be provided solely by the finding of a
violation and that compensation has thus to be awarded. In assessing the
amount, the Court does not consider itself bound by domestic practices, although it may derive some assistance from them.
Deciding on an equitable basis, it awards the applicant FIM 100,000
under this head.
B. Costs and expenses
The applicant further requested the reimbursement of
costs and expenses, totalling FIM 239,838, in respect of the following items:
(a) FIM 4,800 in fees for work by Mr Fredman in the domestic
(b) by way of legal fees incurred before the Commission, FIM
126,000 for Mr Fredman and FIM 24,000 for Mr Scheinin;
(c) for legal fees incurred before the Court up to and
including the memorial, FIM 16,800 for Mr Fredman and FIM 9,600 for Mr
(d) FIM 49,800 for her lawyers’ appearance before the Court;
(e) FIM 8,838 in translation expenses.
The above legal fees, which concerned 385 hours work at FIM 600
per hour, should be increased by the relevant value-added tax (VAT), whereas
the amounts received in legal aid from the Council of Europe should be
Whilst accepting item (a) and expressing no objection to
item (e), the Government regarded the number of hours in connection with items
(b) to (d) as excessive.
The Delegate of the Commission did not state any views
on the matter.
The Court will consider the above claims in the light of
the criteria laid down in its case-law, namely whether the costs and expenses
were actually and necessarily incurred in order to prevent or obtain redress
for the matter found to constitute a violation of the Convention and were
reasonable as to quantum (see, for instance, the Tolstoy Miloslavsky v. the
United Kingdom judgment of 13 July 1995, Series A no. 316-B, p. 83, para. 77).
Applying these criteria, the Court considers that items (a) and
(e) should be reimbursed in their entirety.
As to items (b) to (d), the Court is not satisfied that all the
costs were necessarily incurred.
Deciding on an equitable basis, it awards the total sum of FIM
160,000, to be increased by any applicable VAT, less the 10,835 French francs
which the applicant has received in respect of legal fees by way of legal aid
from the Council of Europe.
C. Default interest
According to the
information available to the Court, the statutory rate of interest applicable
in Finland at the date of the adoption of the present judgment is 11% per
REASONS, THE COURT
1. Holds by eight votes to one that the orders requiring the
applicant’s medical advisers to give evidence did not constitute a violation of
Article 8 of the Convention (art. 8);
2. Holds by eight votes to one that the seizure of the
applicant’s medical records and their inclusion in the investigation file did
not give rise to a violation of Article 8 (art. 8);
3. Holds unanimously that the order to make the transcripts
of the evidence given by her medical advisers and her medical records
accessible to the public in 2002 would, if implemented, constitute a violation
of Article 8 (art. 8);
4. Holds unanimously that the disclosure of the applicant’s
identity and medical condition by the Helsinki Court of Appeal constituted a
breach of Article 8 (art. 8);
5. Holds unanimously that it is not necessary to examine the
applicant’s complaints under Article 13 of the Convention (art. 13);
6. Holds unanimously:
(a) that the respondent State is to pay to the applicant,
within three months, 100,000 (one hundred thousand) Finnish marks in
compensation for non-pecuniary damage, and, for legal costs and expenses,
160,000 (one hundred and sixty thousand) Finnish marks, plus any applicable
VAT, less 10,835 (ten thousand, eight hundred and thirty-five) French francs to
be converted into Finnish marks at the rate applicable on the date of delivery
of the present judgment;
(b) that simple interest at an annual rate of 11% shall be
payable from the expiry of the above-mentioned three months until settlement;
7. Dismisses unanimously the remainder of the claim for just
Done in English and in French, and delivered at a public
hearing in the Human Rights Building, Strasbourg, on 25 February 1997.
In accordance with Article 51 para. 2 of the Convention
(art. 51-2) and Rule 55 para. 2 of Rules of Court B, the partly dissenting
opinion of Mr De Meyer is annexed to this judgment.
PARTLY DISSENTING OPINION OF JUDGE
I. The Court accepted that the applicant’s right to respect
for her private and family life was not infringed by either the orders
requiring her doctors and her psychiatrist to give evidence or the seizure of
her medical records and their inclusion in the investigation file.
It held that these measures were justified in order to
determine when X, her husband, had learnt or had had reason to believe that he
was HIV-positive for the purpose of establishing whether the offences he was
accused of having committed before 19 March 1992 should be classified as
attempted manslaughter, like those he had committed after that date, or only as
In my opinion, whatever the requirements of criminal
proceedings may be, considerations of that order do not justify disclosing
confidential information arising out of the doctor/patient relationship or the
documents relating to it.
II. By indicating that the ten-year "limitation on
confidentiality" decided on by the Finnish courts in this case was too
short, the Court appears to imply that public access to medical data might be
permissible after a sufficient length of time has elapsed.
Without prejudice to what might be acceptable with regard to
other information in criminal case files, I consider that medical data in such
files must remain confidential indefinitely.
The interest in ensuring that court proceedings are public is
not sufficient to justify disclosure of confidential data, even after many
years have elapsed.
III. In the present judgment the Court once again relies on
the national authorities’ "margin of appreciation".
I believe that it is high time for the Court to banish that
concept from its reasoning. It has already delayed too long in abandoning this
hackneyed phrase and recanting the relativism it implies.
It is possible to envisage a margin of appreciation in certain
domains. It is, for example, entirely natural for a criminal court to determine
sentence - within the range of penalties laid down by the legislature -
according to its assessment of the seriousness of the case.
But where human rights are concerned, there is no room for a
margin of appreciation which would enable the States to decide what is acceptable
and what is not.
On that subject the boundary not to be overstepped must be as
clear and precise as possible. It is for the Court, not each State
individually, to decide that issue, and the Court’s views must apply to
everyone within the jurisdiction of each State.
The empty phrases concerning the State’s margin of
appreciation - repeated in the Court’s judgments for too long already - are
unnecessary circumlocutions, serving only to indicate abstrusely that the
States may do anything the Court does not consider incompatible with human
Such terminology, as wrong in principle as it is pointless in
practice, should be abandoned without delay.