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THE FACTS
1. The applicant, M.Y., is a Turkish national who was born in 1971. The Section President accepted the request for non-disclosure of identity submitted by applicant (Rule 47 § 4 of the Rules of Court).
The applicant was represented before the Court by Mr H. Yılmaz Kayar, a lawyer practicing in Istanbul. The Turkish Government (“the Government”) were represented by their agent.
2. M.Y. died on 19 December 2011. In a letter of 17 June 2013, his sister, M.Ö., informed the Court of her intention to pursue the application as the applicant’s heir. On 4 March 2014 the Court granted her leave to pursue the application. For reasons of a practical nature the present decision will continue to use the word “applicant” with reference to M.Y., even though that status should now, strictly speaking, be attributed to his sister.
A. The circumstances of the case
3. The facts of the case as submitted by the parties can be summarised as follows.
4. On the evening of 22 February 2008 the applicant was found unconscious at his home by his relatives, who called for an ambulance. He was taken to the Istanbul Teaching and Research Hospital (“the hospital”) at around 9 p.m. During his transfer his relatives informed the ambulance personnel that he was HIV-positive.
5. According to the applicant, the ambulance personnel had, on arrival at hospital, transmitted that information to the hospital personnel without first of all notifying him or his relatives of this fact.
6. At the hospital the applicant was initially admitted to the emergency department. At 9.24 p.m. the hospital microbiology laboratory drew up a result sheet for a series of tests conducted at the request of the emergency surgery department. At 10.01 p.m. the hospital biochemistry laboratory also drew up a result sheet for tests conducted at the request of the aforementioned department.
7. On 23 February 2008 the hospital emergency department drew up an observation sheet comprising the words “HIV + suicide” as an initial diagnosis. At 1.10 a.m. the head of the emergency department added a handwritten note to the sheet, which also comprised a handwritten note from the internal medicine specialist A.K.Ü. the sheet showed that the applicant had a temperature of 38o C, was HIV-positive, had been found unconscious, had not been in contact with other persons since the previous night, was unconscious, did not respond to verbal or physical stimuli and displayed a swelling on his forehead. The note mentioned that the patient had possibly attempted to commit suicide.
8. On the same day an admission sheet was drawn up for the applicant at the anaesthesiology and intensive care clinic. The sheet comprised a handwritten initial diagnosis of “suicide?”. The medical history set out in the sheet mentioned that the applicant had suffered from nausea and had been found at home unconscious and then taken to the hospital emergency department. It also included references to the applicant’s HIV-positive status and described the first aid administered.
9. Also on the same day, doctors from the hospital’s anaesthesiology and intensive care clinic drew up a report on the applicant’s medical condition, mentioning that he had been found at home unconscious before being taken to the hospital emergency department and then transferred to the intensive care unit for further treatment. The report also mentioned that the applicant had a swelling in the forehead area and a “neurological swelling”, was unconscious and was not responding to verbal or physical stimuli. It also mentioned that the applicant was suffering from AIDS.
10. The applicant’s sister signed a form attesting that she had been informed of her brother’s condition and that she authorised all the treatment necessitated by the latter.
11. According to the description of the facts set out in the application form by the applicant’s lawyer, the applicant’s relatives had been interviewed by the police while they were waiting at the hospital, in order to establish what had happened to him, and then they had been invited to accompany the officers to the police station. The whole procedure had taken until 1.30 a.m.
12. Still on 23 February 2008, at around 5 a.m., the applicant, having regained consciousness, left hospital.
13. On 28 March 2008 the hospital’s medical director transmitted to the applicant, at the latter’s request, a list of the medical personnel who had been involved in his hospital treatment. That list comprised the names of twenty persons, namely a surgeon, an internal medicine specialist, a surgical assistant, an anaesthetist, seven assistant anaesthetists, six intensive care nurses and three other intensive care staff members.
14. On 8 May 2008 the applicant lodged a complaint with the Fatih Public Prosecutor against the hospital medical staff working in the emergency and intensive care departments. He submitted that when they had been apprised of his HIV-positive status the hospital medical staff had failed to provide him with the care and treatment necessitated by his condition, and alleged that there had been a dereliction of professional duties in breach of Article 271 §§ 1 and 2 of the Penal Code suppressing abuse of office. He also argued that he had been subjected to humiliating treatment which had been so intolerable that he had decided to leave hospital contrary to medical advice. Three of his relatives had been witnesses to the situation which he had experienced. The sharing of information concerning his state of health was contrary to Articles 134 and 136 of the Penal Code, because in his view it had breached the confidentiality of his private life, amounting to unlawful disclosure of medical data. He added that he had suffered degrading and discriminatory treatment on grounds of his HIV-positive status, in a manner inconsistent with Articles 94 and 122 of the Penal Code.
15. On 2 June 2008 S.K.S., an assistant at the hospital’s anaesthesiology and intensive care clinic sent the following letter to the Hospital Medical Director:
“On 23 February 2008 I was on duty as medical assistant at the anaesthesiology and intensive care clinic. At about 1 a.m. a consultation was requested for patient ... by the emergency surgery department.... the patient’s relative said that he was HIV-positive and that he was being treated in a clinic for infectious diseases. The patient was examined.... In view of the contradiction between the results of the physical examination and the [patient’s] state of consciousness, and in order to prevent possible poisoning ..., it was decided that the patient should be treated in the intensive care unit. The only beds available in the intensive care unit were in the isolation ward. As the beds had been reserved for the Prime Minister and various political leaders on 24.02.2008, the patient [was placed] in observation in the emergency surgery department and the assistant anaesthetist called around other hospitals in an attempt to find a place for him. At about 2.30 a.m., having failed to find a place [in another hospital], we admitted the patient to the isolation area reserved for the Prime Minister, comprising two beds ... After a while the patient became agitated and removed his nasogastric tube, his urinary catheter and IV equipment. The patient was informed that we had to treat him for some time in the intensive care unit, but he declined any form of treatment ... His relatives were contacted and informed that [he] was refusing to stay in hospital. At the request of the patient and his relatives [he] left the intensive care unit at around 5 a.m. on 23.02.2008.”
16. On an unspecified date Ş.V., a specialist at the anaesthesiology and intensive care clinic, wrote to the Hospital Medical Director. The relevant passages of this letter are as follows:
“... I was on duty as medical assistant at the anaesthesiology and intensive care clinic on 23.02.2008. The surgical observation department requested an examination of the patient ... at about 1 a.m. ... The only beds available in the intensive care unit were in the isolation ward. Owing to the visit by the Prime Minister and various political leaders to Istanbul, we had been informed orally that [our hospital had] been selected as a ‘standby hospital’ and, in order to cater for all eventualities, we had been asked to leave at least all the beds in the isolation ward free so that they were available for the Prime Minister and the political leaders. For this reason, although we continued to look for a place in another hospital, we kept the patient under surveillance. In the absence of a place [elsewhere] ..., the patient was admitted to the intensive care unit at 1.45 a.m. The admission formalities were completed at around 2 a.m. At around 2.20 a.m. ..., the patient showed signs of agitation and voiced a desire to leave the hospital. He rejected our proposal to keep him under surveillance for 24 hours in order to prevent any risk of poisoning, and left of his own free will at around 5 a.m.
1. The patient’s relatives ... stated clearly and confidently, in the presence of others, that the patient had HIV infection.
2. Our intensive care unit has a total of sixteen beds. There is one nurse for every three patients ... In order to protect the health of other patients and prevent the spread of transmissible diseases, the doctors and the medical and nursing staff working in the unit must be informed of any patients with an infection that can be transmitted by blood, air or contact.
3. In principle, our isolation ward is used solely for isolating patients with infections that can be transmitted by contact or through the air. Patients with an infectious disease transmitted by blood, such as HIV, are not assigned beds in the isolation ward. It was because it is deemed inappropriate to treat a patient on a stretcher and also because no other bed had been found in another centre that the patient in question was admitted to our unit. The beds reserved [for the] Prime Minister and the political leaders were [made available] to the patient...
4. ... Owing to the severity of their illnesses, patients in our unit ... are unaware of the presence of the other patients. Patients who have regained consciousness, are able to communicate and have recovered ... leave the ward. For this reason the patients in our unit cannot possibly have found out that the patient [in question] had HIV infection.
5. Inasmuch as the patient was admitted to our intensive care unit while he was unconscious ... and was not responding to oral requests ..., it was not thought that he could be ‘bothered’ by any discussions taking place in his presence. Therefore, [the fact that] during their discussion the doctors, nurses or other staff [might have] mentioned that he had HIV infection was not considered as problematic.
6. No one at any stage said, in the presence of [another] conscious patient or of the patient’s relatives, that he had HIV infection. Particular care was taken in this regard.
7. There is no question that any negligence was committed vis-à-vis the patient ...”
17. On 2 June 2008 A.K.Ü., an internal medicine specialist, wrote to the Patients’ Rights Department as follows:
“On 22.02.2008, following a request from the duty surgical assistant for an emergency internal medicine examination of the patient..., I immediately attended the emergency surgery polyclinic ... The emergency surgeon on duty, H.M., accompanied me during the examination and passed on to me the medical information which she had been able to obtain. When providing me with the patient’s medical records, H.M. informed me, in a perfectly reasonable tone of voice, that he had HIV infection using the English acronym [to refer to the disease]. Furthermore, the information she transmitted to me was important for the diagnosis. I could not have requested a medical history from any of the applicant’s relatives (as mentioned in the application from the patient’s lawyer, the said relatives were attending the police station at the time). Contrary to the patient’s lawyer’s allegations, I did not fail to respect the confidentiality of [his client’s] private life, nor did I act in a manner inconsistent with professional ethics.
The patient was unconscious when I examined him. He was not responding to external stimuli ... I noted a swelling on his forehead and an injury in the parieto-occipital region ... I noticed that [the patient] had a high temperature ... [The patient] had a suspicious stiffness of the neck. All this information is also registered on the emergency department’s examination form ... The patient was transferred to the better-equipped emergency surgery polyclinic ... Since the patient was unconscious at the time of my initial examination and his relatives were absent, I could not obtain a detailed medical history. We therefore consulted the Medin system to ascertain whether the patient had a file in his name ... We discovered that he had been admitted to our hospital for treatment in the infectious diseases clinic from 11.02.2008 to 15.02.2008 for ‘atypical pneumonia’. In order to ascertain the patient’s condition [at the] time [of the examination] and assess his neck stiffness in the context of his high temperature, the emergency surgeon requested an examination in the infectious diseases department ... The patient underwent a multidisciplinary examination by the neurology, infectious diseases, general surgery and internal medicine departments ... An examination was requested in the anaesthesiology and intensive care department with an eye to his possible treatment in the intensive care unit ... The consultant at the intensive care unit also considered that he should be transferred to intensive care. The internal medicine specialists and surgeons are not notified of the availability of beds in our hospital’s intensive care unit. Only the duty specialists in the branch in question and the duty manager have lists of beds available in the different departments... The patient was provided with all the possible internal medicine treatment without delay. Moreover, on the same day the patient was also examined by the anaesthesiology, neurology, infectious diseases and brain surgery specialists ...”
18. From 11 June to 11 July 2008 a preliminary investigation was conducted by the Departmental Directorate of Health of the Istanbul Prefecture. The report prepared on completion of the investigation mentioned the following facts.
S.Ş., a specialist who was on duty on the evening of 22 February 2008, was interviewed during the investigation. She said that the general surgery assistant who had been on duty and had examined the patient before her had told her, in such a way as not to be overheard by anyone and with respect for the confidentiality of private life, that the patient was HIV-positive, adding that he was obliged to mention that fact in order to protect staff and guarantee their security; S.Ş. also stated that the patient’s relatives had mentioned his condition to the members of the emergency team and warned them of potential risks.
During the investigation A.K.Ü., an internal medicine specialist, was also interviewed. She stated that during her service on 22 February 2008 she had attended the emergency surgery department because she had received a request for an examination of the patient, that during the examination she had been accompanied by the duty assistant, that the latter had attempted to help her by transmitting what medical information he had concerning the patient and that the assistant had spoken quietly when informing her of the patient’s HIV-positive status. A.K.Ü. added that that information had been necessary to assess the patient’s condition, that at the time the patient’s relatives had not been present, that she had shown respect for both the patient’s private life and the professional code of ethics and that the treatment had been administered in time.
During the investigation E.U., a nurse who had been on duty on the evening of 22 February 2008, was also interviewed. E.U. stated that as from the patient’s admission to intensive care all nursing care had been provided with the requisite diligence and that the nursing staff had been informed by the doctors that the applicant had HIV infection so that the requisite precautionary measures could be taken.
The investigation report concluded that the patient had received treatment very quickly, that there had been no shortcomings in that respect and that the applicant had been admitted to intensive care without delay. It also found that the discussions among the hospital staff regarding the applicant’s state of health during the consultations and examinations had been aimed solely at ensuring the requisite precautionary measures and could not be interpreted as infringing the confidentiality of his private life. The report further mentioned that the applicant had been unconscious on arrival at hospital, that the persons who had informed the ambulance staff of his pathology had been his relatives, and that the latter had been absent during the consultations and examinations, such that it was doubtful whether the patient could have had cognisance of the discussions between members of the hospital staff. Lastly, the report stated that any lack of information concerning the patient’s HIV-positive status would have led to risks: moreover, in the controversial circumstances of the case, professional and medical ethics had been complied with and no negligence had been noted.
19. On 15 July 2008 the Directorate of Health Affairs of the Istanbul Prefecture, ruling on the basis of the information and documents contained in a preliminary report drawn up by a doctor from the Okmeydanı Teaching and Research Hospital (Istanbul), noted the absence of delays, negligence and discrimination in the provision of treatment for the applicant. The Directorate noted that on arrival at hospital the applicant had been transferred to intensive care without delay and that the information received by staff concerning his HIV-positive status had been justified by reasons of security and could not be interpreted as constituting a breach of the confidentiality of his private life. The Directorate concluded that the staff had acted in accordance with professional and medical ethics, and therefore refused to authorise prosecution.
20. The applicant appealed to the Istanbul Administrative Court against that decision. In his appeal submissions he requested confidentiality for the case on the grounds of the specific personal and medical data at issue. He affirmed that the instigation of a preliminary inquiry before any prosecution of the public servants created a kind of immunity to their advantage which was inconsistent with the right to a fair trial, the right to an effective remedy and the prohibition of discrimination. He considered that the situation thus created constituted an obstacle to criminal prosecution and also to the determination of the responsibilities at issue in the framework of any claims for damages. The applicant also contested the capacity of the person selected – a surgeon who he claimed had no knowledge of HIV – to conduct the preliminary inquiry; the applicant considered that an expert in infectious diseases or medical and professional ethics and patients’ rights should have been appointed. He also complained that he had not been given a copy of the preliminary investigation report and that the judges of the applied court to were not all trained lawyers.
21. By decision of 11 September 2008, which identified the applicant as the complainant party, the Istanbul Court Administrative adopted a decision of lack of jurisdiction and referred the case to the Istanbul Regional Administrative Court, which it considered held jurisdiction to adjudicate it. The court judgment mentioned the applicant’s HIV-positive status as follows:
“... the complainant brought the present proceedings in order to appeal against the decision from the department in question ... refusing to authorise the prosecution of staff at the Istanbul Teaching and Research Hospital which he had attended for treatment of an injury. [He claimed that] because he was HIV-positive there had been shortcomings in establishing a diagnosis and deciding on the requisite treatment and that the staff had discussed and disseminated the fact of his HIV infection...”
22. By decision of 1 April 2009, the Istanbul Regional Administrative Court to which the case had been referred dismissed the applicant’s appeal after noting that the file contained insufficient information and documentation for the instigation of a preliminary investigation of the hospital medical staff. The decision mentioned the applicant by name as the originator of the appeal under consideration, but did not refer to his HIV-positive status.
23. On 12 May 2009 the Directorate of Health Affairs of the Istanbul Prefecture wrote to the applicant’s lawyer to inform him of that decision and to serve it on him. The letter was marked “confidential”.
24. On 21 May 2009 the Public Prosecutor decided to discontinue the prosecution after having noted that authorisation to prosecute the doctors in question had been refused under a decision which had been taken by the Istanbul Prefecture on 15 July 2008 and had become final under a decision given on 1 April 2009 by the Istanbul Regional Administrative Court.
25. The applicant appealed against this discontinuance decision on the grounds that it was contrary to the principle of a fair trial and to the right to an effective remedy secured under Articles 6 and 13 of the Convention. He alleged that the prosecutor had failed to investigate the circumstances surrounding the events, that the case file had initially been entrusted to an investigator who had not been a professional from the relevant medical branch, that the instigation of a criminal prosecution against public servants was subject to prior authorisation by a non-judicial agency – the Governor’s Office – and that the preliminary inquiry report had not been communicated to him. He also submitted that the administrative court had not adjudicated on his request for confidentiality vis-à-vis his medical and personal data. He contended in this regard that between 15 July 2008 and 1 April 2009 the case file had remained accessible for consultation by anyone so requesting. The information given during proceedings before the administrative court regarding his identity and his HIV-positive status had violated Articles 6, 8, 13 and 14 of the Convention.
26. On 23 September 2009 the Beyoğlu Assize Court dismissed the applicant’s appeal on the grounds that the impugned decision had been unobjectionable in legal and procedural terms.
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COMPLAINTS
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35. Under Article 8 of the Convention the applicant complained that his medical data had not been protected and had been communicated to all the hospital staff. He also complained of the alleged public nature of his case and his medical diagnosis, despite his confidentiality request. He contended, in this context, that the authorities had taken no action to ensure the protection of his confidential medical data, which had been collected and disseminated without the consent of those concerned: this had been true of the social security fund, which had given individuals such as employers and various bodies access to those data.
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THE LAW
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C. The alleged violation of Article 8 of the Convention
46. The applicant complained about the disclosure of information concerning his HIV-positive status. He relied on Article 8 of the Convention, the relevant passages of which provide:
“1. Everyone has the right to respect for his private ... life.
2. There shall be on 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 ... for the protection of health or morals, or for the protection of the rights and freedoms of others.”
1) The Government’s observations
47. The Government submitted that only the medical staff concerned had known that the applicant was HIV-positive. The applicant had provided no oral or other evidence establishing that his state of health had been brought to the attention of other persons, such that his complaint should be considered as manifestly ill-founded and accordingly dismissed.
48. The Government also stated that under Article 8 of the Convention, cases of conflicting interest raised the questions of a fair balance to be struck and of proportionality. They pointed out that the rule was that health staff had to be protected: doctors and other health staff who had been informed that a patient was HIV-positive had to pass on that information, privately or using coded language, to all other staff working in the sphere in question.
49. In that regard the Government specified that according to Article 4 of the Medical Code of Ethics doctors should not disclose secrets of which they had been apprised in the course of their professional duties, unless required to do so under a legal obligation.
50. The Government took the view that medical staff had a range of facilities for gaining access to information on a specific patient, but, with the exception of the doctor responsible for that patient, staff were unable to access all the information on that patient. They added that in pursuance of current legislation and the Code of Ethics, information on patients who did not want other persons to have access to data on their medical treatment could not be used for studies. Furthermore, that rule was reproduced on the consent form signed by one of the applicant’s parents on his admission to intensive care.
51. The Government also observed that the consent form comprised the following sentence: “I consent to the use of such data as laboratory results, medical charts and X-ray results in scientific studies, without indication of my name or identity, in accordance with general legislation on health and with the Code of Ethics”. They considered that the fact that the hospital concerned had sought such authorisation proved that it respected patients’ rights and privacy.
52. Furthermore, in its version of the facts, the Government made the following submissions. The applicant had been transported to hospital in an unconscious state, and his relatives had informed the health staff of his HIV-positive status for the first time in the ambulance on the way to the hospital. At the hospital the applicant had been examined by specialists from a number of different departments. The doctors and staff who had been notified of the applicant’s HIV-positive status had meanwhile informed the other doctors and staff involved in the treatment to be administered to the applicant. They had, however, treated that information with great tact and had exclusively used the English initials for the disease to refer to the applicant’s HIV-positive status. The hospital staff had thus acted in line with Article 5 (f) of the Regulations on patients’ rights and Article 4 of the Medical Code of Ethics.
53. According to the Government, it had been of the utmost importance for the doctors and medical staff to have cognisance of the applicant’s illness in order to prevent any potential risk. In that contest the Government referred to the findings of a 2005 survey carried out by the Health Ministry in cooperation with the university hospitals and the education and research hospitals, drawing on WHO publications. On completion of the survey fifty-one patients had been identified as being subject to compulsory notification, inter alia for reasons of AIDS infections.
54. The Government submitted that the information provided to the medical staff concerning the applicant’s illness had been geared to protecting the rights of others for the purposes of Article 8 § 2 of the Convention, and that it had therefore pursued a legitimate aim.
55. They stated that if the medical staff had intervened without having been notified of the applicant’s HIV-positive status, they could have suffered irreparable harm. Such notification had therefore been necessary in a democratic society in order to strike a fair balance between the competing interests of the applicant and the medical staff. Moreover, given that only the medical staff had been given the information on the applicant, the interference had been proportionate to the legitimate aim pursued.
56. As regards the impugned administrative proceedings, the Government affirmed that there had been no interference in the applicant’s private life on the part of the Administrative Court or the Regional Administrative Court. They pointed out that in any case the applicant’s name had been mentioned in his application to refer the case to the Court. They contend that no witnesses had been heard and that the judicial decision given had been served on the applicant’s representative, such that third persons could in no way have had cognisance of the personal information relating to the applicant. The Government therefore submitted that there had been no violation of Article 8 of the Convention.
2) The applicant’s observations
57. Counsel for the applicant submitted that the statements made by the hospital staff to the effect that the applicant’s relatives had not been present at all the stages of his medical treatment were fallacious. He claimed that the applicant’s relatives had been witnesses to the disclosure of the information on his HIV-positive status both to the whole hospital staff, including those who were not involved in providing the treatment, and to family members who had not been aware of that status.
58. He also submitted that although it had been permissible to disseminate the information on the applicant’s HIV-positive status for medical reasons, its transmission to cleaning staff and other individuals not at all involved in the applicant’s treatment had been unnecessary and disproportionate. He complained that the national authorities had not gathered witness statements from the applicant’s relatives even though the latter had been at the hospital at the material time. Lastly, he asserted that the Government’s contention that there had been no witnesses was ill-founded.
59. He added that the documents relating to the medical treatment provided for the applicant were forgeries: according to his relatives the applicant had been admitted to hospital at 3.30 a.m., not at 1.45 a.m. as stated in the hospital documents. Counsel for the applicant submitted that the hospital staff had deliberately forged documents in order to conceal the delay in providing the applicant with treatment.
60. Furthermore, he observed that the national authorities had not produced any documents to prove that beds had been reserved on ministerial orders for a visit to the town by the Prime Minister. He submitted that the hospital staff had not taken serious account of the applicant’s condition.
61. Moreover, Turkey had been one of the first countries to sign the Council of Europe Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data, but also the only signatory country not to have ratified it. He claimed that practices contrary to that Convention concerning the registration of personal and sensitive data were still continuing, thus depriving patients and their data of any kind of protection. Nor were there any regulations to prevent potential discrimination caused by the sharing of sensitive information. Counsel for the applicant submitted that all information on patients was registered either electronically or in writing without the latter’s authorisation, and that patients who refused to allow their data to be registered forfeited health service benefits.
62. Furthermore, with reference to a survey of 19,226 pharmacies in 81 Turkish towns and cities, counsel for the applicant pointed out that by a entering a patient’s identification number into a specific computer database, any pharmacy could access that patient’s diagnosis and the treatment prescribed. He inferred from this that, supposing that at least one person worked in each pharmacy, his client’s medical data had been accessible to at least 19,226 persons.
63. He took the view that the computerised data might also have been accessible to the whole of the hospital staff: given the number of computers available in the hospital and of individuals working there, the same number of persons, some of whom had nothing to do with the medical treatment provided for patients, could have accessed those data whenever they wished. Therefore, the regulations on personal data protection on which the Government had based its pleas failed to guarantee the patients’ security.
64. Counsel for the applicant also referred to a recommendation issued by the Turkish Supervisory Board incorporated into the final section of a report intituled “Assessment of the international and national situation regarding personal data”, which advocated adopting a legal framework in order to guarantee personal data security. He alleged that there were still no applicable standards in matters of personal data protection litigation, as all judgments were made public without restriction. This meant that patients with sensitive data could not apply to the courts for fear of having their data disclosed.
65. Moreover, counsel for the applicant submitted that only the patient should be able to agree to the registration and use of his personal information. The hospital had been careless in its communication of the applicant’s medical diagnosis, as the information on his HIV-positive status had been shared with a large number of individuals who had not been involved in his treatment. Furthermore, he alleged that the applicant’s personal data had been registered without any legal basis, which illustrated the authorities’ failure to comply with personal data protection. He also considered that AIDS should be referred to by the initials “HIV”, and that mandatory notification of cases of HIV should not be interpreted as conferring on the authorities the right to transmit and disclose such information to all and sundry.
66. Furthermore, he argued that protecting the confidentiality of a medical diagnosis was geared to facilitating patient access to the health protection system, ensuring that the patient was well treated and guaranteeing the protection of others. He therefore contended that since medical staff were responsible for providing medical treatment to patients, they were expected to take the standard protective action, and an HIV diagnosis should not change the nature of that action. He submitted that the members of the medical staff had HIV-related prejudices and considered that the virus could be contracted through physical contact or by being in the same environment as the person affected by it. Many AIDS patients suffered or had suffered unfair treatment. For each medical intervention it would be sufficient for the medical staff to take the standard precautionary measures, without any need for notification of a given patient’s HIV-positive status. He reiterated his view that the disclosure of a patient’s diagnosis was completely unacceptable.
67. As regards the proceedings before the administrative courts, counsel for the applicant submitted that it was impossible to lodge an appeal in cases where the complainant’s name and identity were not mentioned. Furthermore, no legislation provided for the confidentiality of identity in civil and criminal proceedings. He added that his client had not been allowed to call any witnesses during proceedings, and submitted that the administrative court had not provided reasons for its decision.
3) The Court’s assessment
a) General principles
68. The Court reiterates that the protection of personal data, particularly medical data, is of fundamental importance to a person’s enjoyment of his or her right to respect for private life (see M.S. v. Sweden, 27 August 1997, § 41, Reports of Judgments and Decisions 1997‑IV). Respecting the confidentiality of health data is vital 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. The domestic law must therefore afford appropriate safeguards to prevent such communication or disclosure of personal health data as may be inconsistent with the guarantees in Article 8 of the Convention (see Z v. Finland, 25 February 1997, § 95, Reports of Judgments and Decisions 1997‑I). Those considerations are especially valid in the sphere of protecting the confidentiality of information on HIV infection. The disclosure of such data may dramatically affect the person’s private and family life, as well as social and employment situation, by exposing him or her to opprobrium and the risk of ostracism. The interests in protecting the confidentiality of such information will therefore weigh heavily in the balance in determining whether the interference is proportionate to the legitimate aim pursued. Such interference cannot be compatible with Article 8 of the Convention 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 (ibid, § 96).
69. As regards the public accessibility of personal data in judicial decisions, the Court reiterates that it has already acknowledged that the competent national authorities should be afforded some latitude in striking a fair balance between, on the one hand, the protection of the public nature of judicial proceedings, which is necessary for the maintenance of confidence in the courts (see Pretto and Others v. Italy, 8 December 1983, § 21, Series A no. 71), and on the other, the protection of the interests of a party or a third person in ensuring the continuing confidentiality of such data. The extent of the margin of appreciation in such matters depends on factors such as the nature and the importance of the interests at stake and the seriousness of the interference (see C.C. v. Spain, no. 1425/06, § 35, 6 October 2009).
b) Application to the present case
70. In the first place the Court observes that the applicant complained about the disclosure of the information concerning his HIV-positive status which had occurred in the hospital to which he had been admitted and during the proceedings before the domestic courts, and also about the social security fund’s practice of making confidential medical information accessible.
71. In this connection the Court firstly notes that there is no disagreement between the parties on the fact that the applicant’s HIV-positive status was a private matter, because it was a personal and sensitive item of information relating directly to his health.
72. Secondly, it notes that as regards the disclosure of that information in the hospital, it is undisputed that the applicant was unconscious on his admission to hospital and that he had not himself mentioned his HIV-positive status. Nor is it contested that the applicant’s relatives transmitted that information to the personnel of the ambulance which they had called. The applicant’s specific complaint was that the ambulance personnel had taken the initiative of transmitting that information to the hospital staff and that the information had been passed on not only to the medical staff but also to the non-medical staff of the hospital in question.
73. The Court reiterates that the protection of personal data, particularly 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 (see M.S. v. Sweden, cited above, § 41). It also reiterates the importance of practical and effective measures to prevent unauthorised access to medical data (see I. v. Finland, no. 20511/03, § 38, 17 July 2008). The Court points out that it has already found that that people living with HIV are a vulnerable group with a history of prejudice and stigmatisation (see Kiyutin v. Russia, no. 2700/10, § 64, ECHR 2011). It thus reaffirms the importance of the confidentiality of medical information relating to such persons in order to reduce the risks of stigmatisation vis-à-vis the medical condition in question and to ensure that they have access to healthcare without discrimination.
74. Nevertheless, the Court also emphasises that the right to respect for medical secrecy is not absolute (see Eternit v. France (dec.), no. 20041/10, 27 March 2012, § 37). In particular, in cases of treatment of patients within the hospital and health system, including HIV-positive patients, transmission of information on the patient’s condition may, under certain circumstances, be relevant and necessary for the purposes of not only guaranteeing appropriate medical treatment for the patient but also ensuring the protection of the rights and interests of the healthcare providers involved in his treatment and of other patients, by enabling the requisite precautionary measures to be adopted. Care should be taken to ensure that the addressee of the information is subject to the specific rules on confidentiality relevant to health professionals or similar confidentiality requirements.
75. In the present case the Court observes that domestic law guarantees respect for private life and the confidentiality of medical information, and also penalises any violation of that principle. The confidentiality of private life is enshrined in Turkish criminal law, which penalises the offence of disclosure of secret information ... Moreover, the Medical Code of Ethics and the regulations on patients’ rights guarantee respect for the confidentiality of medical information ... The Court further gathers from the legislative and statutory provisions in question that medical secrecy is binding not only on doctors but also, more broadly, on all persons holding information on a patient’s health by dint of their situation or profession ...
76. Furthermore, the Court notes that the information on the applicant’s HIV-positive status was transmitted to the ambulance personnel by his relatives. It considers that the ambulance personnel cannot be criticised for having communicated that information to the hospital staff. In this connection the Court considers that the need to facilitate the efficient provision of treatment and monitoring of a patient may justify the transmission of information among the different medical professionals involving in providing the various types of healthcare. In fact, it does not transpire from the case file that the transmission of information between the ambulance personnel and the hospital staff had not been effected in the applicant’s best interests vis-à-vis his medical treatment or in the hospital staff’s interests in terms of their security while implementing the requisite medical procedures.
77. As regards the allegation that the information had been disseminated around the hospital to which the applicant had been admitted, the Court notes from the documents in the case file and the information at its disposal that the information on the applicant’s HIV-positive status was entered on his medical chart and was indeed transmitted to the various healthcare providers involved in the case. Nevertheless, the Court takes the view that the need to ensure the continuity of treatment and the wide range of medical professionals involved in establishing a diagnosis and/or providing care for a given patient were, in the present case, such as to justify sharing the information in question among all the professionals involved in treating the applicant.
78. Similarly, the Court cannot ignore the fact that medical workers themselves run the risk of HIV infection owing to their exposure to the latter in the course of their duties, and that providing them with the relevant information helps to reduce that risk. It therefore considers that hospital staff security and the protection of public health can, as submitted by the Government, justify the transmission of information on a patient’s HIV-positive status among the medical personnel involved in his or her treatment in order to prevent any risk of in-hospital transmission of the disease.
79. Nevertheless, the Court holds that sensitive information of the kind involved in the present case should be transmitted in such a way as to prevent any form of stigmatisation of the patient and to provide sufficient safeguards for that purpose. It notes that medical secrecy and the confidentiality of medical data are guaranteed by domestic law, such that, where the information covered by such secrecy is shared among various healthcare providers, all such staff are, in principle, required to respect the confidentiality of the data transmitted to them, failing which they are liable to disciplinary action or criminal proceedings.
80. In the circumstances of the present case, in the light of the case file and in view of the fact that the applicant was unconscious on admission to hospital, the Court considers that there is nothing to suggest that the information in question was not disseminated in the applicant’s best interests with an eye to the requisite diagnosis and treatment, and on the basis of hospital staff security requirements. Accordingly, the sharing of information on the applicant’s HIV-positive status among the medical staff involved cannot be considered as having flouted his right to respect for his private life. Moreover, there is no evidence that persons who were not involved in providing him with medical treatment were informed of his HIV-positive status.
81. Furthermore, as regards the applicant’s allegation that his identity had been disclosed during proceedings before the domestic courts, the Court notes from the case file and the information in its possession that the applicant had requested the confidentiality of proceedings before the administrative courts. It transpires from the decisions of these courts that they did not adjudicate on that request. The Court notes that all the decisions given by the domestic courts in the framework of the proceedings initiated by the applicant mention the name of the person concerned by the proceedings, but only the decision declining jurisdiction given by the Istanbul Administrative Court mentions his HIV-positive status: it transpires from the case file that no other domestic court decision given in the context of those proceedings mentions the applicant’s HIV-positive status or any other medical information concerning him. Moreover, the writ of service of the judgment of the Istanbul Regional Administrative Court adjudicating on the merits of the applicant’s appeal, which was sent to counsel for the latter, is marked confidential.
82. The Court emphasises that, in principle, proceedings before administrative courts are written and based on documentary evidence; no hearings are held unless the parties to the proceedings so request. Although in the present case the judgment declining jurisdiction delivered by the Istanbul Administrative Court did mention the applicant’s name and his HIV-positive status, there is nonetheless nothing to suggest that the decision in question declining jurisdiction was published or made public in any other way, or that it might have been accessible to the public. Consequently, the Court does not consider that one mention of the applicant’s HIV-positive status solely in the latter decision can in itself be regarded as capable of infringing respect for the latter’s private life (cf. the circumstances in the cases of Z v. Finland and C.C. v. Spain, cited above).
83. Finally, as regards the applicant’s allegation that the medical data gathered by the social security fund are readily accessible to a whole category of persons, the Court observes that it is couched in very broad terms and that no evidence of such accessibility was provided in the present case.
84. It follows that this part of the application is manifestly ill-founded and must be dismissed in pursuance of Article 35 §§ 3 and 4 of the Convention.
...
For those reasons the Court, on a majority,
Declares the application inadmissible.
Done in French and then communicated in writing on 19 March 2015.
Stanley NaismithAndrás Sajó
RegistrarPresident
Full & Egal Universal Law Academy