AS TO THE ADMISSIBILITY OF
Application No. 28019/95
by Ove HALLGREN
against Sweden
The European Commission of Human Rights (Second Chamber) sitting
in private on 27 November 1996, the following members being present:
Mrs. G.H. THUNE, President
MM. J.-C. GEUS
G. JÖRUNDSSON
A. GÖZÜBÜYÜK
J.-C. SOYER
H. DANELIUS
F. MARTINEZ
M.A. NOWICKI
I. CABRAL BARRETO
J. MUCHA
D. SVÁBY
P. LORENZEN
E. BIELIUNAS
E.A. ALKEMA
Ms. M.-T. SCHOEPFER, Secretary to the Chamber
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 1 June 1995 by
Ove Hallgren against Sweden and registered on 25 July 1995 under file
No. 28019/95;
Having regard to the report provided for in Rule 47 of the Rules
of Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The applicant is a Swedish citizen, born in 1935 and resident at
Mölndal. He is on an early retirement pension.
The facts of the case, as submitted by the applicant, may be
summarised as follows.
The applicant suffered from blood vessel ruptures in his face and
was granted early retirement pension. He was allegedly wrongly
diagnosed up to 1979. During the preceding 20 years his face had been
highly red; others would repeatedly call him ugly or consider him an
alcoholic.
In the late 1970's or early 1980's the applicant obtained access
to his medical records. He was shocked by certain allegedly insulting
annotations which had been made by physicians treating him without
success. The records indicated that he was mentally ill, principally
suffering from a neurosis. At his request the records which were being
kept by certain care institutions were destroyed, while his requests
pertaining to records kept by various other public bodies were
rejected.
In 1987 the applicant requested the destruction of five medical
reports submitted to the Mölndal Social Insurance Office (Försäkrings-
kassan i Mölndal) between 1974 and 1980. The Office was opposed to
their complete destruction, given that his entitlement to an early
retirement pension was founded on them and they would be of interest,
should the Office ex officio re-assess his right to the pension. This
was the Office's right under chapter 20, section 10a of the 1962
Insurance Act (lag 1962:381 om allmän försäkring). The Office did not,
however, object to deleting certain passages which the applicant found
particularly insulting.
On 25 February 1987 the National Board of Health and Welfare
(Socialstyrelsen) rejected the applicant's request, considering that
it was in the public interest to retain the medical reports in
question.
The Stockholm Administrative Court of Appeal (Kammarrätten i
Stockholm) rejected the applicant's appeal on 1 October 1987. The
Supreme Administrative Court (Regeringsrätten) refused him leave to
appeal on 23 February 1988.
In 1992 the applicant requested the deletion of certain
annotations appearing in the patient records kept by the Mölndal
Hospital. He also renewed his request to have the five medical reports
kept by the Social Insurance Office destroyed.
On 2 December 1992 the Board decided that the relevant
annotations appearing in his hospital records should be destroyed. As
to the medical reports kept by the Social Insurance Office, the Board
found that the conditions for a destruction thereof had not changed
since its decision of 1987. His request was therefore again rejected.
The applicant appealed, arguing that copies of the reports which
he sought to have destroyed had previously been destroyed by the care
institutions. In any case, it was not necessary to retain those reports
for any possible reconsideration of his entitlement to the early
retirement pension, given that the reports contained wrong diagnoses
of his state of health. His appeal was rejected by the Administrative
Court of Appeal on 1 February 1993. The Supreme Administrative Court
refused him leave to appeal on 23 December 1994.
According to the 1985 Act on Patient Records (patientjournallag
1985:562), annotations in a patient record within the health care or
hospital administration shall be phrased so as to respect the patient's
integrity (section 4). Patient records shall be kept so as to prevent
unauthorised access to them (section 7). At the request of the patient
concerned the National Board of Health and Welfare may order that his
or her record shall be destroyed either completely or partly. The
patient must, however, show acceptable reasons for such a request. It
is also required that the record to be destroyed is not needed for his
or her care and that the public interest does not require that the
record be kept (section 17).
COMPLAINTS
1. The applicant complains about the authorities' refusal to order
the destruction of his patient records at the Mölndal Social Insurance
Office. He invokes no specific Article of the Convention.
2. He furthermore complains that he cannot have the refusal reviewed
by an impartial tribunal. He invokes Article 6 of the Convention.
THE LAW
1. The applicant complains about the refusal to order the
destruction of his patient records at his local social insurance
office. The Commission has examined this complaint under Article 8
(Art. 8) of the Convention which, as far as relevant, reads as follows:
"1. Everyone has the right to respect for his private ...
life ...
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 Commission recalls that the essential object of Article 8
(Art. 8) is to protect the individual against arbitrary interference
by the public authorities. The storing in patient records of
information relating to a person's private life may constitute an
interference with the right to respect for private life guaranteed by
Article 8 para. 1 (Art. 8-1) (cf. No. 14461/88, Dec. 9.7.91, D.R. 71
pp. 141, 155-157). In addition, there may be positive obligations
inherent in an effective "respect" for private life within the meaning
of that provision. Whilst the boundaries between the State's positive
and negative obligations under this provision do not lend themselves
to precise definition, the applicable principles are similar. In
particular, in both contexts regard must be had to the fair balance
that has to be struck between the competing interests of the individual
and of the community as a whole (see, e.g., Eur. Court HR, Gaskin v.
the United Kingdom judgment of 7 July 1989, Series A no. 160, pp. 15
et seq., paras. 38 et seq.; cf. also Leander v. Sweden judgment of 26
March 1987, Series A no. 116).
The question arising in the present case is essentially whether
the Swedish authorities have failed to respect the applicant's private
life by refusing to destroy certain medical reports which relate to him
and are being kept by the local social insurance office.
The applicant asserts that the diagnoses contained in the medical
reports which he sought to have destroyed are no longer accurate and
have been corrected by later medical reports. It therefore appears that
any harm which the non-destruction of the first-mentioned reports might
be causing or could cause him today is or would be negligible. In
addition, his requests for the destruction of similar information kept
by other institutions have met with the authorities' approval. In so
far as the authorities have ordered that the original reports are to
be retained by the local social insurance office the Commission notes
that this body remains entitled to review its decision to grant the
applicant an early retirement pension. Under domestic law, however,
patient records such as those at issue here shall be kept so as to
prevent unauthorised access to them.
In these particular circumstances and taking into account the
respondent State's margin of appreciation, the Commission finds that
the Swedish authorities were reasonably entitled to refuse the
applicant's request that these medical reports be destroyed.
Accordingly, there is no appearance of a violation of Article 8
(Art. 8) of the Convention.
It follows that this complaint is manifestly ill-founded within
the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.
2. The applicant also complains that he cannot have the refusal to
order the destruction of those records reviewed by an impartial
tribunal. He invokes Article 6 (Art. 6) of the Convention which, in so
far as relevant in the present case, reads as follows:
"1. In the determination of his civil rights and
obligations ... everyone is entitled to a ... hearing ...
by an ... impartial tribunal established by law. ..."
Assuming that this provision is applicable, the Commission notes
that the refusal in question was reviewed by the Administrative Court
of Appeal. The applicant has in no way substantiated his allegation
that this body failed to meet the requirements of an "impartial
tribunal" within the meaning of Article 6 para. 1 (Art. 6-1).
Accordingly, there is no indication of a violation of this provision
either.
It follows that this complaint is also manifestly ill-founded
within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.
For these reasons, the Commission, unanimously,
DECLARES THE APPLICATION INADMISSIBLE.
M.-T. SCHOEPFER G.H. THUNE
Secretary President
to the Second Chamber of the Second Chamber
Full & Egal Universal Law Academy