In the case of Avilkina and Others v. Russia (Application no. 1585/09) the Court found a violation of Article 8 of the ECHR in relation with the disclosure of confidential medical data of members of a religious community regarding their refusal of blood transplantation.
The applicants were the Administrative Center of Jehova's Witnesses in Russia, seated in St. Petersburg, and three private persons, Ms Avilkina, MsDubinina and Zhukova. Following a series of complaints submitted to it, the Office of the City Prosecutor of St. Petersburg launched an investigation which found no illegal activity in connection with the practices of the Center. However, in 2007, the Deputy City Prosecutor asked the "St Petersburg Public Health Committee to instruct all the city’s medical institutions to report every refusal of transfusion of blood or its components by Jehovah’s Witnesses".The second, the third and the fourth applicants received medical non-blood management medical treatment in different public hospitals. In the case of the case of the second and the fourth applicants, the medical institution disclosed the data related to their treatment to the Prosecutor's Office.
Relying on Article 8 of the Convention, the second, third and fourth applicants complained that the prosecutor’s office had asked the doctors to disclose the information contained in their medical files without their consent and in the absence of any criminal investigation warranting such disclosure. As a result, confidential medical information had been disclosed in respect of the second and fourth applicants.
Violation of Article 8
Since no disclosure of the third applicant’s medical files took place, the Court found that the complaint brought by the third applicant under Article 8 is incompatible ratione personae with the provisions of the Convention, and must, therefore, be rejected.
As to the alleged violation of the right to respect of private life of the second and the fourth applicant, the Court reiterated its case-law according to which personal information relating to a patient belongs to his or her private life. The disclosure by public hospitals of the applicants’ medical files to
the prosecutor’s office therefore constituted an interference with their right to respect for their private life. In order this interference be justified, it must be in accordance with the conditions set out in paragraph 2 of Article 8 which states as follows:
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. (emphasis added)
The ECtHR, firstly, accepted the Government’s argument that the disclosure of the applicants’ medical
files to the prosecutor’s office had a basis in domestic law, in the
Basic Principles of Public Health Law. This law was undisputedly "accessible" as well. However it also considered that "the legislative provisions in force at the material time [...] were worded in rather general terms and might have been open
to extensive interpretation". Secondly, as to the legitimate aim, it found that the disclosure of confidential medical information served the State interest of law enforcement. It therefore considered it unneccessary to rule separately on this issue as far as it did not concerne the proportionality of the impugned interference.
Finally, in determining whether the impugned measures were “necessary in a democratic society”, the Court considered whether, in the light of the case as a whole, the reasons adduced to justify them were relevant and sufficient and the measures were proportionate to the legitimate aims pursued. It recalled its firm practice that the protection of medical information is of fundamental importance to a person’s enjoyment of the right to respect for his or her private and family life:
Respecting the confidentiality of health data is a vital principle in the legal systems of all the Contracting Parties to the Convention. The disclosure of such data may seriously affect a person’s private and family life, as well as their social and employment situation, by exposing them to opprobrium and the risk of ostracism [...]. Respecting the confidentiality of health data is crucial not only for the protection of a patient’s privacy but also for the maintenance of that person’s confidence in the medical profession and in the health services in general. Without such protection, those in need of medical assistance may be deterred from seeking appropriate treatment, thereby endangering their own health [...]. Nevertheless, the interests of a patient and the community as a whole in protecting the confidentiality of medical data may be outweighed by the interest of investigating and prosecuting crime and in the publicity of court proceedings, where such interests are shown to be of even greater importance [...].
Furthermore, in cases concerning the disclosure of personal data, the ECtHR had recognised that a margin of appreciation should be left to the competent national authorities in striking a fair balance between the relevant conflicting public and private interests. However, this margin goes hand in hand with European supervision.
As to the circumstances of the present case, the Court did not discern any pressing social need for requesting the disclosure of the confidential medical information concerning the applicants. They were not suspects or accused in any criminal investigation. The prosecutor merely conducted an inquiry into the activities of the Center. It was open to the medical professionals providing treatment to the second applicant, who was two years old at the time, to apply - or to ask the prosecutor to apply - for judicial authorisation for a blood transfusion if they believed her to be in a life-threatening situation. Likewise, the doctors who reported the fourth applicant’s case did not consider that her refusal of a blood transfusion was due to pressure exerted on her by other adherents of her religious beliefs and not an expression of her true will. In such circumstances, the Court considered that the means employed by the prosecutor need not have been so oppressive for the applicants. It also took into account that there were options, other than ordering the disclosure of confidential medical information, available to the prosecutor to follow up on the complaints lodged with his office.
The Court also took into account "the interpretation of the applicable legislation by the domestic courts that at the relevant time the prosecutor’s power to request the disclosure of confidential medical information without the patient’s consent was not limited to criminal proceedings against the individual concerned [...], but could be exercised in connection with any “investigation” carried out by the prosecutor’s office". The law conatined any indication as to who might be affected by such disclosure, or the procedures to be observed. It was open to the applicants to challenge the lawfulness of the prosecutor’s order after the disclosure had taken place. The applicants made use of that opportunity. Their grievances were reviewed by national courts at two levels of jurisdiction. The Russian court, however, found the disclosure to be in compliance with the law and dismissed the claims. In this respect, the ECtHR discerned
no mention in the text of the judgments of any efforts by the national authorities’ to strike a fair balance between the applicants’ right to respect for their private life and the prosecutor’s activities aimed at protecting public health and individuals’ rights in that field. Nor did the authorities adduce relevant or sufficient reasons which would have justified the disclosure of the confidential information.
Accordingly, the opportunity to object to the disclosure of the confidential medical information once it was already in the prosecutor’s possession did not afford the applicants sufficient protection against unauthorised disclosure. The Court concluded that the collection by the prosecutor’s office of confidential medical information concerning the applicants was not accompanied by sufficient safeguards to prevent disclosure inconsistent with the respect for the applicants’ private life guaranteed under Article 8 of the Convention. Therefore, there has been a violation of Article 8 of the Convention.
***
