Professional Documents
Culture Documents
Z v. FINLAND
Z v. FINLAND
Z.
against
Finland
TABLE OF CONTENTS
Page
I. INTRODUCTION
(paras. 1-18). . . . . . . . . . . . . . . . . . . . . .1
A. The application
(paras. 2-4). . . . . . . . . . . . . . . . . . . .1
B. The proceedings
(paras. 5-13) . . . . . . . . . . . . . . . . . . .1
6. Publicity of documents
(paras. 98-101) . . . . . . . . . . . . . . 16
TABLE OF CONTENTS
Page
B. Points at issue
(para. 112) . . . . . . . . . . . . . . . . . . . 19
CONCLUSION
(para. 166) . . . . . . . . . . . . . . . . . . . 30
CONCLUSION
(para. 171) . . . . . . . . . . . . . . . . . . . 30
E. Recapitulation
(paras. 172-173). . . . . . . . . . . . . . . . . 30
I. INTRODUCTION
A. The application
2. The applicant is a Finnish citizen, born in 1964 and resident in
Helsinki. She was represented before the Commission by
Mr. Markku Fredman, a lawyer practising in Helsinki, and
Dr. Martin Scheinin, Doctor of Law, Helsinki.
4. The case concerns the manner in which evidence was taken by the
police and accepted by the courts in the course of criminal proceedings
instituted against the applicant's husband on suspicion that he had
knowingly contaminated other women with HIV. As a result of the
measures taken by the authorities the applicant's status as a carrier
of HIV and other intimate private matters were disclosed. The case also
concerns the alleged lack of effective remedies enabling the applicant
to challenge the measures taken or envisaged by the authorities. The
applicant invokes Articles 8 and 13 of the Convention.
B. The proceedings
8. On 5 July 1994 the Commission granted the applicant legal aid for
the representation of her case.
15. The text of this Report was adopted on 2 December 1995 by the
Commission and is now transmitted to the Committee of Ministers of the
Council of Europe, in accordance with Article 31 para. 2 of the
Convention.
18. The full text of the parties' submissions, together with the
documents lodged as exhibits, are held in the archives of the
Commission.
19. The applicant and her husband, X., a foreign citizen, are both
carriers of the human immunodeficiency virus (HIV).
25. Around 15 March 1992 M.'s boyfriend T. saw the applicant and
asked her whether X. was carrying HIV.
26. On 19 March 1992 X. was informed of the results of the blood test
which indicated that he was carrying HIV.
32. At the City Court's first hearing on 22 April 1992 M.'s counsel
asked X. whether the applicant was also carrying HIV. X. refused to
answer.
33. At the City Court's hearing on 6 May 1992 M. confirmed that she
had been informed by the police that the applicant was carrying HIV.
The City Court furthermore heard T. in regard to the contents of his
telephone conversation with the applicant on 6 April 1992.
35. On 20 May 1992 the applicant appeared before the City Court,
having been summoned to appear as a witness. She refused to give
testimony in this capacity, invoking her status as X.'s spouse.
37. On 27 May 1992 the Public Prosecutor requested the police to hear
Chief Doctor L. as well as other doctors who had possibly been treating
X. The doctors were to be heard either as experts or witnesses with the
intention of obtaining information in regard to the question when X.
had become aware of his HIV-infection.
38. On 15 June 1992 the large evening paper "Ilta-Sanomat" reported
the trial against X., stating that he was carrying HIV and that there
was not yet any certainty as regards the applicant's possible status
as an HIV-carrier, since she had refused to give witness testimony.
39. On 20 July 1992 the police requested the City Court to order
Chief Doctor L. to disclose, as a witness, information enabling it to
be established when X. had become aware of his HIV-infection. Such an
order was issued by the City Court on 12 August 1992.
40. At its hearing on 12 August 1992 the City Court dismissed Chief
Doctor L.'s objections to testifying as a witness and proceeded to
hearing him in this capacity. In his testimony he also disclosed
information pertaining to the applicant but which had been omitted from
the copies of X.'s hospital records handed over to the prosecution.
41. The City Court ordered its hearing file, including the
transcripts of Chief Doctor L.'s testimony, to be kept confidential
until the determination of any possible charges against X. or until the
close of the pretrial investigation, should no further charges be
brought.
49. On 4 January 1993 the applicant was temporarily laid off by the
company employing her. The company invoked financial grounds and
factors in its field of production.
50. At the City Court's hearing on 27 January 1993 another of the
physicians treating the applicant, Dr. K., was in spite of his
objections heard as a witness called by the prosecution. In his
testimony he disclosed, inter alia, information pertaining to the
applicant.
54. At the City Court's hearing on 3 March 1993 Chief Doctor L. was,
despite his renewed objections, again heard as a witness called by the
prosecution. Before testifying he read out the applicant's letter to
him dated 23 February 1993 which stated inter alia as follows:
59. Among the other material seized at the applicant's hospital were
test results from a large number of laboratory tests and examinations
concerning other issues than the existence of HIV in her blood,
information about her previous illnesses, her mental state as well as
a survey of her quality of life based on an assessment by herself.
60. On 10 March 1993 the City Court decided to include the copies of
the seized records in its documents. On the same day it heard Dr. S.V.
as an expert called by the prosecution.
62. On 7 April 1993 Chief Doctor L. as well as Drs. K., V., S.-H. and
S. were heard as witnesses before the City Court. Also Dr. S.V. was now
heard as a witness. All had been called by the prosecution.
63. It appears that Dr. J.S. was also heard before the City Court in
his capacity as witness called by the prosecution.
66. At a hearing before the City Court on 5 May 1993 the applicant's
psychiatrist, Dr. K.R., was despite his objections heard as a witness
called by the prosecution. Dr. S.V. was again heard as a witness. Also
two further physicians who had been treating the applicant, Drs. T. and
R., were heard as witnesses despite their objections.
67. At the City Court's hearing on 5 May 1993 the applicant agreed
to give testimony as a witness, stating that the matters concerning her
had already been dealt with by the City Court in other ways. She
testified, inter alia, that she had not received the HIV infection
from X.
68. All the hearings before the City Court took place behind closed
doors.
69. On 19 May 1993 the City Court convicted X. on, inter alia, three
counts of attempted manslaughter committed on 1 March, 31 August and
10 September 1992. It rejected, inter alia, the charges for attempted
manslaughter committed on 19 December 1991 but convicted X. of rape.
His aggregated sentence amounted to seven years' imprisonment.
70. The City Court made public the provisions applied in the case,
the operative part of the judgment and an abridged version of its
reasoning. Its full reasoning and the documents in the case were
ordered to be confidential for a period of ten years. Both the
complainants and X. had requested a longer period of confidentiality.
71. Appeals against the City Court's judgment were lodged with the
Court of Appeal (hovioikeus, hovrätten) of Helsinki by the
complainants, X. as well as the prosecution.
72. On 14 October 1993 the Court of Appeal held a hearing of the case
at which all appellants requested that the court documents should be
ordered to be kept confidential for more than ten years. A period of
thirty years was suggested.
73. On 10 December 1993 the Court of Appeal upheld the City Court's
judgment, inter alia, in so far as X. had been convicted on three
counts of attempted manslaughter. It also convicted X. on, inter alia,
two further counts of attempted manslaughter committed on
19 December 1991 and 6 September 1992. His aggregated sentence was
increased to over eleven years' imprisonment.
(Finnish)
(translation)
89. Chapter 17, section 23, subsection 1(3) of the same Code reads,
in its relevant parts, as follows:
(Finnish)
"Todistaa ei saa:
(translation)
(Finnish)
(translation)
92. Section 27, subsection 2 of the same Act reads, in its relevant
part, as follows:
(Finnish)
(translation)
(Finnish)
(translation)
(Finnish)
(translation)
96. According to the 1992 Act on Patients' Status and Rights 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. It 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).
6. Publicity of documents
111. A judgment which has acquired legal force may also be annulled
(purkaa, återbryta) by the Supreme Court. An annulment in a civil case
as well as for the defendant's benefit in a criminal case may be
sought, inter alia, on the grounds that the judgment is manifestly
based on wrong application of the law (chapter 31, section 7 (4) and
section 8 of the Code of Judicial Procedure, as amended by Act
no. 109/60).
112. In what appears to be the first case of its kind in Finland the
Supreme Court, in 1993, convicted a person, S., of grossly negligent
manslaughter, having found that he had had sexual intercourse with
another person, K., without informing him that he was carrying HIV
(judgment No. 1993:92). K. had later died as a result of the HIV
infection obtained from S. The City Court had decided to publish only
the legal provisions applied, the operative part of the judgment and
a summary of its reasons. In the published judgments rendered by the
Court of Appeal and the Supreme Court the names of the witnesses heard
had been replaced by a letter. All courts ordered that the documents
in their case-files should remain confidential for a period of ten
years from the City Court's judgment.
B. Points at issue
"1. Everyone has the right to respect for his private and
family life, his home and his correspondence.
117. The applicant submits that the particular manner in which her
doctors and psychiatrist were heard was "not in accordance with the
law" within the meaning of Article 8 para. 2 (Art. 8-2), given that
domestic law on this point was not sufficiently foreseeable. To begin
with, their obligation to observe the secrecy of information which they
had obtained while performing their profession could, according to the
Code of Judicial Procedure, be ignored only after charges had been
brought against X. for attempted manslaughter. However, on the basis
of what appears to be an excessively wide interpretation of the Act on
Pretrial Investigation some of the applicant's doctors were heard as
witnesses already in the pre-trial investigation.
118. Secondly, the applicant submits that domestic law did not clearly
specify whether her doctors and psychiatrist could be heard as
witnesses not only in regard to information concerning X. but also in
regard to information pertaining to herself. As a result of an
excessively wide interpretation of the Code of Judicial Procedure, her
doctors and psychiatrist therefore had to disclose intimate details
concerning her state of health which, according to the Act on Patients'
Rights and Status, should have remained confidential forever.
121. The applicant could accept the hearing of her doctors and
psychiatrist, had it been limited to the question whether patient
records pertaining to certain unnamed persons contained information
showing that X. knew or ought to have suspected that he was carrying
HIV at the relevant time. Instead the applicant's rights were blatantly
disregarded throughout the proceedings, starting with the disclosure
of her HIV-status during the police questioning of complainant M. on
5 March 1992. Given that her HIV-status was formally disclosed by Chief
Doctor L. only in August 1992, it must therefore have been illegally
leaked to the police by health care staff, for whose actions the State
is responsible under the Convention. Although this leak constituted a
criminal offence, the police made no investigation thereof. Instead it
used the information for the purpose of investigating whether M. had
also been the victim of attempted manslaughter by X.
122. The applicant submits that the so-called "HIV rape cases" had
attracted considerable public interest and that one of the complainants
had stated in the pre-trial investigation that she wished that the case
would get "as much publicity as possible". Finnish law allegedly did
not prevent the complainants from leaking information emanating from
the documents in the case or disclosed to them at the trial. Particular
care should therefore have been taken by the authorities dealing with
the case. A lesser intrusion in the applicant's privacy and family life
would not have jeopardised the rights of the parties to the criminal
proceedings. Nor would this have been the result of measures taken for
the protection of her identity.
124. The applicant finally points out that X. had not been charged
solely with attempted manslaughter but also with rape of all
complainants. Whether or not he could at all be convicted did not
therefore depend on the evidence obtained by way of the particular
manner in which the applicant's doctors and psychiatrist were heard as
witnesses. Moreover, as regards the three counts of attempted
manslaughter which had taken place after X. had been HIV-tested, it was
clear that he had already become aware of his HIV-infection. Because
of the rules governing aggregated prison sentences the sentence which
would have been imposed on X., had he been convicted on three rather
than on five counts of attempted manslaughter, would hardly have
differed from the sentence actually imposed. Furthermore, under
domestic law compensation for mental suffering could not be awarded to
the complainants for attempted manslaughter, which was indeed the case
for a rape offence. X.'s conviction on three rather than on five counts
of attempted manslaughter would therefore not have affected the
possibility for the complainants of obtaining damages from him.
129. The applicant also submits that the measures in question pursued
none of the legitimate aims enumerated in Article 8 para. 2 (Art. 8-2).
Even assuming that such an aim existed, the measures were not
proportionate to any such aim. The seizure was of a wholesale and
indiscriminate character, comprising tens of pages of documents
concerning intimate details about the applicant's sexual life and other
sensitive private matters. This material was already at the outset
entirely irrelevant to the assessment of X.'s guilt. None of the seized
records contained any information about the sexual relations between
the applicant and X., nor could they have offered any evidence
permitting the establishment of X.'s guilt in regard to the two counts
of suspected attempted manslaughter committed before he had been
informed of the results of his blood test in March 1992. At any rate,
it was not necessary for the police to include the applicant's entire
patient records in its pretrial investigation record without ensuring
that irrelevant information was not disclosed in the ensuing criminal
proceedings. Information enabling the applicant to be identified could,
for instance, have been deleted or distorted and information about her
mental state could have been deleted or abridged.
131. The applicant also points out that the City Court was under no
obligation to accept her entire patient records as evidence in the
trial against X., at least not by including them in its documents in
their unabridged form. In any case, once all her records had been
seized, included in the pretrial record and thereby made available to
the parties to the criminal proceedings against X., there was no
justification under Article 8 para. 2 (Art. 8-2) for the Court of
Appeal's order that the documents should become available to the public
in 2002.
132. The Government submit that Article 8 (Art. 8) has not been
violated on any of the above points. The search and seizure were based
on the Act on Coercive Means of Criminal Investigation and were thus
"in accordance with the law". They had the same legitimate aims as the
hearing of the applicant's doctors and psychiatrist. The inclusion of
the applicant's entire patient records in the pretrial investigation
record was also "in accordance with the law" and had the same
legitimate aims as previously referred to. This particular measure was
necessary in order to ensure that the complainants would be informed
about all evidence obtained during the investigation of the offences
of which X. had been suspected. As a pretrial investigation should be
conducted objectively, it would not have been justified to exclude part
of the seized material from the investigation record. The competent
courts were, moreover, entitled to be informed of all material
potentially relevant to the charges against X.
133. As regards the proportionality of the investigatory measures, the
Government refer to their arguments in regard to the necessity of the
hearing of the applicant's doctors and psychiatrist. Moreover, given
that the applicant was married to X., she was by no means a complete
outsider in the criminal proceedings against him. Nor can the
Government take any responsibility for the press reports concerning the
search and seizure or the alleged further effects of those reports.
134. The Government finally submit that Article 8 (Art. 8) has not
been violated on account of the inclusion of the applicant's entire
patient records in the court documents and their future availability
to the public. Any pretrial investigation material which has been
accepted by the courts as evidence should as a rule be available to the
public. In order to ensure this 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 courts' decisions to declare the
applicant's patient records confidential only for a period of ten years
were based on common practice and after a balancing of the private and
public interests in the matter.
138. The applicant finally underlines that her and X.'s family name
is extremely rare in Finland, where population records are accessible
to the public. The disclosure at issue therefore had enormous
consequences for her private and professional life.
139. The Government again submit that Article 8 (Art. 8) has not been
violated. They 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 which would permit his or her
identification by outsiders. This exercise of caution presupposes,
however, that the clarity of the judgment is not jeopardised. The Court
of Appeal's reasoning in the judgment in question required that the
applicant be referred to as the wife of the accused X. The additional
disclosure of her name was therefore of no significance.
142. The Government submit that the applicant could have instituted
criminal proceedings or civil proceedings for damages against the civil
servants possibly responsible for the disclosure of information about
her state of health. Reference is made to the Constitution Act, the
Penal Code and the Tort Liability Act. The applicant could also have
lodged complaints with the Parliamentary Ombudsman or the Chancellor
of Justice, both being competent to bring charges against civil
servants. Reference is finally made to the remedies prescribed by the
1987 Act on Personal Data Files.
(ii) all the applicant's medical records were seized and incorporated
wholesale into the investigation file, thereby becoming
available to all involved in the criminal proceedings against
her husband, including the complainants;
(iii)although the criminal proceedings themselves were conducted in
private, the trial record, including the applicant's medical
records and the evidence of her doctors, are to become publicly
accessible in the year 2002; and
(iv) the applicant has not only been identified by name in the
published judgment of the Court of Appeal but the judgment
(which has been reported in the Finnish press) also disclosed
details of her medical condition.
148. The Commission can accept that the various measures were "in
accordance with the law", that is, that they were in compliance with
domestic law and satisfied the requirements of accessibility and
foreseeability.
150. The central issue in the case is therefore whether the measures
were necessary to achieve those aims and, more particularly, whether
they were in all the circumstances proportionate, having regard to the
gravity of the interference.
153. In the present case the Commission notes the serious offences
with which X. had been charged and the relevant circumstance, namely
whether he had, before obtaining the results from his blood test, known
that he was carrying HIV or at least had had reason to suspect this.
The Commission accepts that this information was necessary for the
conviction of X. of attempted manslaughter and not merely of rape in
so far as the offences committed on 19 December 1991 and 1 March 1992
are concerned. In view of this, interference with the applicant's
private life may have been justified by weighty public and private
interests militating in favour of pursuing the investigation concerning
attempted manslaughter.
154. However, even assuming that the interference was called for,
there were insufficient safeguards to ensure that the invasion of the
applicant's privacy was reduced to the minimum and that there was no
unnecessary public disclosure of intimate information concerning her
health. Nor did the authorities take effective measures so as to ensure
that the applicant's privacy be respected as much as possible.
160. As to the former point, it is clear that the courts were not
only empowered to restrict access to the court records for up to forty
years but that eventually all parties requested that the
confidentiality period be extended beyond ten years.
166. Summing up, the Commission must take account of the difficulties
faced by the national authorities in striking a proper balance between
the interests of the proper administration of justice and the interests
of the applicant. Nevertheless, having regard to the acutely sensitive
and intimate nature of the information in question and the general
interest in maintaining confidentiality in the patient-doctor
relationship, the Commission cannot but conclude that the authorities
failed adequately to safeguard the applicant's right to respect for her
private life.
CONCLUSION
170. The applicant complains that she had - and has - no effective
remedy at her disposal in order to challenge the violations of
Article 8 (Art. 8) which allegedly occurred. With the exception of the
Court of Appeal's confidentiality order, all events and decisions
complained of under Article 8 (Art. 8) have already produced lasting
damaging effects which can no longer be removed by any remedy. Not
being a party to the criminal proceedings against X. she could not
effectively object to the intended hearing of her doctors and
psychiatrist, the intended seizure of her entire records nor against
the intended inclusion of her hospital records in the pre-trial record
and the court documents. Nor was she heard before the courts considered
the period of confidentiality which was to apply to the documents
included in their files or before the full reasoning of the Court of
Appeal's judgment was published.
CONCLUSION
E. Recapitulation