AS TO THE ADMISSIBILITY OF
Application No. 22009/93
by Z.
against Finland
The European Commission of Human Rights (First Chamber) sitting
in private on 28 February 1995, the following members being present:
Mr. C.L. ROZAKIS, President
Mrs. J. LIDDY
MM. A.S. GÖZÜBÜYÜK
A. WEITZEL
M.P. PELLONPÄÄ
B. CONFORTI
N. BRATZA
I. BÉKÉS
E. KONSTANTINOV
G. RESS
Mrs. M.F. BUQUICCHIO, 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 21 May 1993 by Z.
against Finland and registered on 8 June 1993 under file No. 22009/93;
Having regard to:
- the reports provided for in Rule 47 of the Rules of Procedure of
the Commission;
- the observations submitted by the respondent Government on
20 April 1994 and the observations in reply submitted by the
applicant on 1 June 1994;
- the additional observations submitted by the Government on 8 and
20 February 1995 and by the applicant on 23 February 1995;
Having deliberated;
Decides as follows:
THE FACTS
The applicant is a Finnish citizen, born in 1964 and resident in
Helsinki. She is represented by Mr. Markku Fredman, a lawyer practising
in Helsinki.
The facts of the case, as submitted by the parties, may be
summarised as follows.
Particular circumstances of the case
The applicant and her husband, X., a foreign citizen resident in
Finland, are both carrying the human immunodeficiency virus (HIV).
On 10 March 1992 the City Court (raastuvanoikeus, rådstuvurätten)
of Helsinki convicted X. of rape of another woman and sentenced him to
a conditional prison sentence.
Before the City Court of Helsinki X. was subsequently charged
with four further sexual offences committed as from December 1991. In
the pretrial investigation the police had detected that X. was carrying
HIV. The police had then attempted to obtain information from the
applicant as to when X. had been made aware of his disease. The
applicant, however, had refused to testify as a witness, referring to
her right to remain silent in her capacity as X.'s spouse.
In the course of the second criminal proceedings the prosecutor
also charged X. with attempted manslaughter, claiming that X. had had
forced sexual intercourse with a woman, already knowing at the time
that he was carrying HIV. X. himself stated that he had been informed
of the disease only on 19 March 1992 following an examination at the
hospital where he was being treated.
On 27 May 1992 the prosecutor requested the police to hear the
Chief Doctor of the hospital as well as other doctors who had possibly
been treating X. The doctors were to be heard either as experts or
witnesses. The intention was to obtain information as to when X. had
been informed that he was carrying HIV.
At the time of the police investigation the applicant was also
being treated at the same hospital, the Chief Doctor being in charge
of the treatment of both her and X.
On 20 July 1992 the police requested the City Court to order the
Chief Doctor to disclose information enabling it to be established when
X. had learned that he was carrying HIV. Such an order was issued by
the City Court on 12 August 1992.
At the City Court's hearing on the same day, held behind closed
doors, the Chief Doctor testified about X.'s status as a carrier of
HIV. He also disclosed information pertaining to the applicant. This
information had been omitted from X.'s hospital records which had
previously been obtained by the police.
The City Court's file from the hearing was ordered to be kept
confidential until the determination of any possible charges against
X. or until the close of the pretrial investigation, should no charges
be brought.
On 23 September 1992 the Chief Doctor lodged a petition with the
Parliamentary Ombudsman (eduskunnan oikeusasiamies, riksdagens
justitieombudsman), complaining of his obligation to testify as a
witness.
In her opinion of 5 February 1993 the Deputy Parliamentary
Ombudsman (eduskunnan apulaisoikeusasiamies, riksdagens biträdande
justitieombudsman) considered that no measures were called for. She
observed that domestic law had not been breached. In the particular
circumstances of the case she accepted the City Court's balancing of,
on the one hand, the public interest in investigating crime and, on the
other hand, the applicant's interest in not having information in
confidential records pertaining to her disclosed.
On 8 and 9 March 1993 the police conducted a search at the
hospital treating the applicant and X. The records pertaining to the
applicant were seized and photocopied. The original records were
subsequently returned to the hospital. Copies of all records were
annexed to the pretrial record concerning the charges against X.
On 7 April 1993 the Chief Doctor and other doctors treating the
applicant were heard as witnesses before the City Court, again sitting
behind closed doors.
On 9 April 1993 a newspaper reported about the seizure of the
applicant's hospital records. The applicant was referred to as "the
wife of X". (The first name and family name of X. was stated in full.)
Soon thereafter the applicant's employment contract was terminated.
On 5 May 1993 the applicant was heard as a witness before the
City Court, sitting behind closed doors. Her doctors were again heard
as witnesses as well as her psychiatrist.
On 19 May 1993 the City Court convicted X. of, inter alia,
attempted manslaughter, as he had had forced sexual intercourse with
four women knowing that he was carrying HIV. He was sentenced to seven
years' imprisonment. The judgment and the documents in the case were
ordered to be confidential for a period of ten years.
On 10 December 1993 the Court of Appeal (hovioikeus, hovrätten)
of Helsinki convicted the applicant of rape and attempted manslaughter,
both offences committed on 19 December 1991 with a single act, of
attempted manslaughter and fornication offending personal freedom, both
offences committed on 1 March 1992 with a single act, and of attempted
manslaughter committed on 6 September 1992. The Court of Appeal upheld
the City Court's judgment in so far as X. had been convicted for
certain further offences. His aggregated sentence was increased to over
eleven years' imprisonment.
In its judgment the Court of Appeal noted, inter alia, that X.
and the applicant had married on 12 April 1990 and that, on
31 August 1990, the applicant had been found to carry HIV. When heard
as a witness before the City Court, she had stated having informed X.
about her disease at the end of 1990. When heard before the Court of
Appeal, X. had stated having been informed by the applicant about her
disease before January 1991. The Court of Appeal further noted the
statement by one of the doctors heard as a witness before the City
Court. According to her, X. must have been contaminated at the latest
in March 1991, judging from the symptoms of his disease. The Court of
Appeal concluded that X. must have known about his disease at the
latest in December 1991.
The Court of Appeal published its judgment as a whole. X.'s
counsel had requested that the documents in the case be kept
confidential for more than ten years, arguing that this was also in the
applicant's interest. The complainants (the victims of the sexual
offences of which X. had been convicted by the City Court) had also
requested a longer period of confidentiality. The Court of Appeal
decided not to extend the period during which the documents in the case
are to be kept confidential. As regards the complainants' identities,
the judgment only mentions their first names and the first letters of
their surnames. X. and the applicant are referred to by their full
names. The judgment further states that the finding of HIV in the
applicant's blood dates back to 31 August 1990.
According to the applicant, press reports about the Court of
Appeal's judgment mentioned that the conviction had been based on the
witness statement of "X.'s Finnish wife." (The name of X. was again
stated in full.)
On 26 September 1994 the Supreme Court (korkein oikeus, högsta
domstolen) refused X. leave to appeal.
Relevant domestic law
1. Third parties' right or obligation to remain silent in
criminal proceedings
In principle, no one can refuse to make a witness statement
before a court. Such a statement may, however, not be demanded from,
inter alia, the spouse of one of the parties to the proceedings against
the will of the spouse (chapter 17, section 20 (1) of the Code of
Judicial Procedure (Oikeudenkäymiskaari, Rättegångsbalk)).
In the absence of consent given by a person in favour of whom an
obligation to remain silent is prescribed, a witness statement shall
not be demanded from, inter alia, a doctor in so far as it would
concern what he has learned in his position as a doctor and which, due
to the nature of the information, should be kept confidential
(chapter 17, section 23, subsection 1(3)). A doctor may, nevertheless,
be ordered to testify as a witness if the public prosecutor is charging
someone with an offence for which at least six years' imprisonment is
prescribed, or with having attempted to commit such an offence
(subsection 3).
The 1987 Act on Pretrial Investigation (esitutkintalaki 449/87,
förundersökningslag 449/87) prescribes to the spouse and doctor of a
suspect a right or an obligation to remain silent also in the course
of a pretrial investigation prior to any charges having been brought
(section 27, subsection 1). However, if the doctor could be ordered to
testify as a witness once charges have been brought and provided these
concern an offence for which at least six years' imprisonment is
prescribed, he may choose to testify already in the pretrial
investigation (subsection 2).
If it is evident that a person has information of importance to
the investigation of a suspect's guilt but refuses to disclose it,
although he is obliged to do so or, in accordance with section 27,
subsection 2, may choose to do so, the court may order him to disclose
the information at the request of the police. The hearing may be held
before the court (section 28, subsection 1). The party to the pretrial
investigation and his counsel may be allowed to attend the proceedings
in which the request is dealt with as well as the actual hearing of the
witness (subsection 2).
2. Seizure of documents
A document may not be seized for the purpose of being used as
evidence if, inter alia, it can be presumed to contain information
which a person referred to in chapter 17, section 23 of the Code of the
Judicial Procedure is not allowed to reveal as a witness before a
court. A further requirement is that the document is in the possession
of that person or the person in favour of whom the obligation to remain
silent is prescribed. However, if the person would have the right or
obligation to testify as a witness in a pretrial investigation
regarding the contents of the document, in accordance with section 27,
subsection 2 of the Act on Pretrial Investigation, the document may be
seized nevertheless (chapter 4, section 2, subsection 2 of the Coercive
Criminal Investigation Means Act (pakkokeinolaki 450/87, tvångsmedels-
lag 450/87)).
3. Publicity of documents and court proceedings
According to the 1951 Act on the Publicity of Official Documents
(laki 83/51 yleisten asiakirjain julkisuudesta; lag 83/51 om allmänna
handlingars offentlighet), official documents are public (section 1).
They include, inter alia, documents drawn up and issued by an authority
as well as documents submitted to an authority and which are still in
that authority's possession (section 2, subsection 1). A pretrial
record shall not be public until the matter has been brought before a
court or the police investigation has been closed without charges
having been brought (section 4).
Everyone shall have access to a public, official document
(section 6, as amended by Act no. 739/88). An exception is made, inter
alia, for medical and similar reports, which are accessible to the
public only following the consent of the person they relate to (section
17). Even in the absence of such consent a party to, for instance,
criminal proceedings, shall have access to such a document, if it could
affect the outcome of the case (section 19, subsection 1, as amended
by Act no. 601/82). Access may, however, be refused to a document
forming part of a pretrial record which has not yet been completed,
provided access could jeopardise the investigation (subsection 3).
The publicity of court proceedings is governed by the 1984 Act
on the Publicity of Court Proceedings (laki 945/84 oikeudenkäynnin
julkisuudesta, lag 945/84 om offentlighet vid rättegång). A separate
appeal against a decision concerning the publicity of proceedings is
not allowed (section 11). The decision must thus be challenged in an
ordinary appeal lodged by a party.
The court may, at the request of a party or for another weighty
reason, decide to hold an oral hearing either entirely or partly in the
absence of the public (section 5). If an oral hearing has been entirely
or partly held in the absence of the public or if, during such a
hearing, a document or information which should be kept confidential
has been submitted, the court may decide that the documents in the case
be kept confidential for up to forty years. The operative part of the
judgment as well as the legal provisions invoked shall always be made
public (section 9).
4. Protection of sensitive information
According to the 1992 Act on Patients' Status and Rights (laki
785/92 potilaan asemasta ja oikeuksista, lag 785/92 om patientens
ställning och rättigheter) which entered into force on 1 May 1993,
patient records shall be kept confidential. Information may only be
disclosed to a third party with the patient's written consent.
Information may, nevertheless, be disclosed to, among others, a court
of law, another authority or a society which has been granted access
thereto by law (section 13).
The 1987 Act on Personal Data Files (henkilörekisterilaki 471/87;
personregisterlag 471/87) contains provisions on the administration of
data files. Sensitive information concerning, for instance, someone's
state of health shall not be entered in such a file (section 6). An
exception is, however, made for, among others, health care authorities
and officials (section 7). If the Data Protection Ombudsman (tieto-
suojavaltuutettu, dataombudsmannen) finds out that personal data are,
inter alia, being disclosed contrary to the law, an attempt shall be
made to have the file keeper change its practice voluntarily. If
necessary, the matter shall be brought before the Data Protection Board
(tietosuojalautakunta, datasekretessnämnden) or the Public Prosecutor
(section 34). The Board may on pain of an administrative fine
(uhkasakko, vite) order that the file keeper correct its wrongdoing.
It may also prohibit further data disclosure or order that the keeping
of personal data files must cease (section 35, subsections 2 and 3 and
section 36). An appeal against an above-mentioned decision of the Board
lies with the Supreme Administrative Court (korkein hallinto-oikeus,
högsta förvaltningsdomstolen)(section 38).
The keeper of a personal data file is liable to compensate the
financial loss and, provided it is not of a minor character, the
suffering caused to a person by the use or disclosure of file
information contrary to the 1987 Act (section 42).
COMPLAINTS
1. The applicant complains under Article 8 of the Convention
that her right to respect for her private and family life has been
violated in that
(a) in the investigation of the charges against her husband X.
her doctors were unlawfully forced to disclose information regarding
her state of health;
(b) the search of the hospital treating her and the seizure of
her records there were not justified for the purposes of the above
investigation;
(c) in any event her entire hospital records should not have been
included in the pretrial record and later included in the City Court's
documents, as only a minor part of the records were relevant to the
investigation;
(d) the courts ordered that her hospital records should be kept
confidential only for ten years, and in that
(e) in its judgment the Court of Appeal disclosed her identity
and status as a carrier of HIV.
In addition, the applicant complains that the State showed a lack
of respect for her private and family life
(f) by not preventing newspapers from reporting about the
criminal proceedings against her husband in such a way that her
identity and status as a carrier of HIV was disclosed; and
(g) by not preventing her employer from subsequently terminating
her employment contract.
More specifically, the applicant considers that the seizure of
her hospital records circumvented her right not to testify in the
proceedings against her husband. No fair balance was struck between her
interest in not having her disease disclosed to the public and the
public interest in investigating the offences of which her husband was
suspected. Had she known that her identity and status as a carrier of
HIV would be disclosed in a judgment, she would not have agreed to
testify as a witness. The disclosure allegedly violated section 17 of
the 1951 Act on the Publicity of Official Documents. The applicant
stresses that she and her husband are the only persons resident in
Finland with their family name. The disclosure of her status as a
carrier of HIV has therefore already had serious and irreversible
consequences for her. Reference is finally made to a recent judgment
in a case also concerning criminal contamination with HIV and in which
the Supreme Court did not reveal the identity of the witnesses.
2. The applicant also complains that, as a third party to the
criminal proceedings against her husband X., she has no effective
remedy at her disposal in order to challenge the violations alleged
above. In this respect she invokes Article 13 of the Convention.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 21 May 1993 and registered on
8 June 1993.
On 2 March 1994 the Commission decided to communicate the
application to the respondent Government, pursuant to Rule 48
para. 2 (b) of the Rules of Procedure.
The Government's written observations were submitted on
20 April 1994. The applicant replied on 1 June 1994.
On 5 July 1994 the Commission granted the applicant legal aid.
Additional observations were submitted by the Government on 8 and
20 February 1995 and by the applicant on 23 February 1995.
On 28 February 1995 the Commission decided to give the
application precedence in accordance with Rule 33 of its Rules of
Procedure.
THE LAW
1. The applicant complains under Article 8 (Art. 8) of the
Convention that her right to respect for her private and family life
has been violated in that
(a) in the investigation of the charges against her husband X.
her doctors were unlawfully forced to disclose information regarding
her state of health;
(b) the search of the hospital treating her and the seizure of
her records there were not justified for the purposes of the above
investigation;
(c) in any event her entire hospital records should not have been
included in the pretrial record and later included in the City Court's
documents, as only a minor part of the records were relevant to the
investigation;
(d) the courts ordered that her hospital records should be kept
confidential only for ten years, and in that
(e) in its judgment the Court of Appeal disclosed her identity
and status as a carrier of HIV.
In addition, the applicant complains that the State showed a lack
of respect for her private and family life
(f) by not preventing newspapers from reporting about the
criminal proceedings against her husband in such a way that her
identity and status as a carrier of HIV was disclosed; and
(g) by not preventing her employer from subsequently terminating
her employment contract.
Article 8 (Art. 8) of the Convention reads as follows:
"1. Everyone has the right to respect for his private and
family life, his home and his correspondence.
2. There shall be no interference by a public authority
with the exercise of this right except such as is in
accordance with the law and is necessary in a democratic
society in the interests of national security, public
safety or the economic well-being of the country, for the
prevention of disorder or crime, for the protection of
health or morals, or for the protection of the rights and
freedoms of others."
The Government submit that the complaints under this provision
are all manifestly ill-founded. Any interference with the applicant's
rights under Article 8 (Art. 8) was justified under para. 2 of that
provision, given that the measures complained of were carried out in
accordance with the law with the aim of preventing disorder and crime
and protecting the health as well as the rights and freedoms of others.
The measures were not disproportionate to their aims and were therefore
necessary in a democratic society. In the alternative, the Government
argue that the State has not shown any lack of respect for the
applicant's rights under Article 8 (Art. 8), since a fair balance was
struck between the conflicting interests at stake.
As regards the inclusion of the applicant's hospital records in
the pretrial record, the Government refer to the need to ensure that
the complainants were informed about all evidence obtained. As a
pretrial investigation shall be conducted objectively, it would not
have been justified to restrict the investigation only to part of the
applicant's hospital records. The courts were entitled to be informed
of all material potentially relevant to the case. Moreover, any
pretrial investigation material which has become part of the evidence
before a court should as a principle be available to the public. In
order to ensure the publicity of court proceedings, as guaranteed by
Article 6 para. 1 (Art. 6-1) of the Convention, it is not justified
that court documents concerning a person's health should always be
declared confidential. The City Court's decision to declare the
applicant's hospital records confidential only for a period of ten
years was based on common practice and following a balancing of the
private and public interests in the matter.
As regards the disclosure in the Court of Appeal's judgment of
the applicant's identity and status as a carrier of HIV, the Government
concede that it is appropriate court procedure in cases dealing with
an extremely sensitive private matter to avoid referring to the person
concerned in a way permitting his or her identification by outsiders,
provided, however, that the clarity of a judgment is not jeopardised.
The Court of Appeal's reasoning required that the applicant be referred
to as the wife of the accused. The additional disclosure of her name
was therefore of no significance. Finally, reference is again made to
the requirement in Article 6 para. 1 (Art. 6-1) of the Convention that
court proceedings should, in principle, be public. The Government
consider that the exceptions permitted in that provision concern only
the actual proceedings before a court and not its judgment as such.
The applicant maintains that it would have been possible to
protect her identity without jeopardising the rights of the parties to
the criminal proceedings. Instead of including her entire hospital
records in the pretrial record they could have been abridged so as not
to disclose information about, for instance, her mental state which was
irrelevant to the pretrial investigation. The information disclosing
her identity could furthermore have been deleted or distorted in order
to prevent her identification. The seizure of her hospital records was
not "necessary in a democratic society", since they contained no
information about the sexual relations between her and her husband. Nor
did they offer any convincing evidence that he had known that he was
carrying HIV at the time of the sexual offences. Finally, the
disclosure in the Court of Appeal's judgment of the applicant's
identity and status as a carrier of HIV was not "necessary in a
democratic society" either. The judgment could have been kept
confidential apart from its operative provisions and the legal
provisions applied.
The Commission has carried out a preliminary examination of the
above complaints and considers that they raise questions of fact and
law of such a complex nature that their determination requires an
examination of the merits. None of the complaints can therefore be
declared inadmissible as being manifestly ill-founded within the
meaning of Article 27 para. 2 (Art. 27-2) of the Convention. No other
reason for declaring any of the complaints inadmissible has been
established.
2. The applicant also complains that, as a third party to the
criminal proceedings against her husband, she has no effective remedy
at her disposal in order to challenge the violations alleged above.
In this respect she invokes Article 13 (Art. 13) of the Convention.
This provision reads as follows:
"Everyone whose rights and freedoms as set forth in this
Convention are violated shall have an effective remedy
before a national authority notwithstanding that the
violation has been committed by persons acting in an
official capacity."
The Government submit that this complaint is also manifestly ill-
founded, since the applicant has no arguable claim of a violation of
her rights under Article 8 (Art. 8) of the Convention. In the
alternative, they submit that she had a sufficient aggregate of non-
judicial remedies at her disposal. Accordingly, she could have
instituted criminal proceedings against the civil servants allegedly
responsible for the measures complained of, in pursuance of the
Constitution Act (Suomen hallitusmuoto 94/19, Regeringsform för Finland
94/19) and the Penal Code (rikoslaki 39/1889, strafflag 39/1889).
Moreover, under the Tort Liability Act (vahingonkorvauslaki 412/74,
skadeståndslag 412/74) damage proceedings may be instituted against the
State for actions taken by civil servants. Furthermore, the applicant
could have lodged complaints with the Parliamentary Ombudsman or the
Chancellor of Justice (valtioneuvoston oikeuskansleri, justitiekanslern
i statsrådet), both being competent to bring charges against civil
servants. Finally, the Government refer to the remedies under the 1987
Act on Personal Data Files.
The applicant maintains that she had - and has - no effective
remedy at her disposal in order to challenge the violations which
allegedly have occurred. In particular, as a non-party to the criminal
proceedings against X. she could not object to the use and disclosure
of her hospital records and status as a carrier of HIV.
The Commission has carried out a preliminary examination of this
complaint and considers that it raises questions of fact and law of
such a complex nature that their determination requires an examination
of the merits. The complaint cannot therefore be declared inadmissible
as being manifestly ill-founded within the meaning of Article 27
para. 2 (Art. 27-2) of the Convention. No other reason for declaring
the complaint inadmissible has been established.
For these reasons, the Commission, unanimously,
DECLARES THE APPLICATION ADMISSIBLE,
without prejudging the merits of the case.
Secretary to the First Chamber President of the First Chamber
(M.F. BUQUICCHIO) (C.L. ROZAKIS)
Full & Egal Universal Law Academy