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FOURTH
SECTION
CASE OF
K.H. AND OTHERS v. SLOVAKIA
(Application
no. 32881/04)
JUDGMENT
STRASBOURG
28 April
2009
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of K.H. and Others v. Slovakia,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Nicolas
Bratza,
President,
Lech
Garlicki,
Giovanni
Bonello,
Ljiljana
Mijović,
Ján
Šikuta,
Mihai
Poalelungi,
Nebojša
Vučinić,
judges,
and
Lawrence Early, Section
Registrar,
Having
deliberated in private on 7 April 2009,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 32881/04) against the Slovak
Republic lodged with the Court under Article 34 of the Convention for
the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by eight Slovak nationals, K.H., J.H., A.Č.,
J.Čo., J.Če., V.D., H.M. and V.Z., on 30 August
2004. The President of the Chamber acceded to the applicants’
request not to have their names disclosed (Rule 47 § 3 of the
Rules of Court).
- The
applicants were represented by Ms V. Durbáková,
a lawyer practising in Košice and Ms B. Bukovská
from the Centre for Civil and Human Rights in Košice.
The Slovak Government (“the Government”) were
represented by their Agent, Mrs M. Pirošíková.
- The
applicants alleged, in particular, that their rights under Articles 6
§ 1, 8 and 13 of the Convention had been infringed as a result
of the failure by the domestic authorities to make photocopies of
their medical records available to them.
- By
a decision of 9 October 2007 the Court declared the application
partly admissible.
- The
Government filed further written observations (Rule 59 § 1). The
Chamber having decided, after consulting the parties, that no hearing
on the merits was required (Rule 59 § 3 in fine), the
applicants replied in writing to the Government’s observations.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The applicants are eight female Slovakian nationals of
Roma ethnic origin.
A. Background to the case
- The
applicants were treated at gynaecological and obstetrics departments
in two hospitals in eastern Slovakia during their pregnancies and
deliveries. Despite continuing to attempt to conceive, none of the
applicants has become pregnant since their last stay in hospital,
when they delivered via caesarean section. The applicants suspected
that the reason for their infertility might be that a sterilisation
procedure was performed on them during their caesarean delivery by
medical personnel in the hospitals concerned. Several applicants had
been asked to sign documents prior to their delivery or on discharge
from the hospital but they were not sure of the content of those
documents.
- The
applicants, together with several other Roma women, granted powers of
attorney to lawyers from the Centre for Civil and Human Rights, a
non-governmental organisation based in Košice.
The lawyers were authorised to review and photocopy the women’s
medical records in order to obtain a medical analysis of the reasons
for their infertility and possible treatment. The applicants also
authorised the lawyers to make photocopies of their complete medical
records as potential evidence in future civil proceedings for
damages, and to ensure that such documents and evidence were not
destroyed or lost. The photocopies were to be made by the lawyers
with a portable photocopier at the expense of the Centre for Civil
and Human Rights.
- The
applicants attempted to obtain access to their medical records in the
respective hospitals through their authorised representative in
August and September 2002. The lawyer unsuccessfully asked the
management of the hospitals to allow her to consult and photocopy the
medical records of the persons who had authorised her to do so.
- On
11 October 2002 representatives of the Ministry of Health expressed
the view that section 16(6) of the Health Care Act 1994 did not
permit a patient to authorise another person to consult his or her
medical records. The above provision was to be interpreted in a
restrictive manner and the term “legal representative”
concerned exclusively the parents of an underage child or a guardian
appointed to represent a person who had been deprived of legal
capacity or whose legal capacity had been restricted.
B. Civil proceedings
- The
applicants sued the hospitals concerned. They claimed that the
defendants should be ordered to release their medical records to
their authorised legal representative and to allow them to obtain a
photocopy of the documents included in the records.
1. Action against the J. A. Reiman University Hospital in
Prešov
12. Six
applicants brought an action against the J.A. Reiman
University Hospital (Fakultná
nemocnica J. A. Reimana) in
Prešov (“the Prešov
Hospital”) on 13 January 2003.
- On
18 June 2003 the Prešov District Court
delivered a judgment ordering the hospital to permit the
plaintiffs and their authorised representative to consult their
medical records and to make handwritten excerpts thereof. The
relevant part of the judgment became final on 15 August 2003 and
enforceable on 19 August 2003.
- With
reference to section 16(6) of the Health Care Act 1994 the District
Court dismissed the request to photocopy the medical documents. The
court noted that the records were owned by the medical institutions
concerned and that such a restriction was justified with a view to
preventing their abuse. It was not contrary to the plaintiffs’
rights and freedoms guaranteed by the Convention. The applicants
appealed against that part of the judgment.
- On
17 February 2004 the Regional Court in Prešov
upheld the first-instance decision, according to which the
applicants were not entitled to make photocopies of their medical
files. There was no indication that the applicants’ right to
have any future claim for damages determined in accordance with the
requirements of Article 6 § 1 of the Convention had been
jeopardised. In particular, under the relevant law the medical
institutions were obliged to submit the required information to,
inter alia, the courts, for example in the context of civil
proceedings concerning a patient’s claim for damages.
2. Action against the Health Care Centre in Krompachy
- H.M.
and V.Z., the two remaining applicants,
brought an identical action against the Health Care Centre (Nemocnica
s poliklinikou) in Krompachy (“the Krompachy Hospital”)
on 13 January 2003.
- On
16 July 2003 the District Court in Spišská
Nová Ves ordered the defendant to allow the applicants’
representative to consult their medical records and to make excerpts
thereof. It dismissed the claim concerning the photocopying of the
medical documents. The court referred to section 16(6) of the Health
Care Act 1994 and noted that even courts or other authorities were
not entitled to receive photocopies of medical records. Such a
restriction was necessary in order to prevent abuse of personal data
contained therein.
- The
applicants appealed against the decision concerning the photocopying
of the documents. They relied on Articles 6 and 8 of the Convention
and argued that, unlike public authorities and the medical
institutions concerned, they had only limited access to their medical
records, which meant that they were restricted in assessing the
position in their cases and in bringing an appropriate action for
damages.
- On
24 March 2004 the Regional Court in Košice
upheld the first-instance decision to reject the claim
concerning the photocopying of the medical records.
C. Constitutional proceedings
1. Complaint of 24 May 2004
- On
24 May 2004 the six applicants who had sued the Prešov
Hospital lodged a complaint under Article 127 of the
Constitution. They alleged that the Prešov
Hospital, the District Court and the
Regional Court in Prešov had violated, inter alia,
their rights under Articles 6 § 1 and 8 of the Convention.
- As
regards Article 6 § 1 the applicants argued that, in practice,
handwritten excerpts from medical records could be abused just as
photocopies of the relevant documents could. However, preventing the
applicants from making photocopies of those documents put them at a
disadvantage vis-à-vis the State, to which the medical
institutions concerned were subordinated and which would act as
defendant in proceedings concerning any future claim for damages.
Furthermore, the principle of equality of arms required that the
applicants should have at their disposal all the documentation in the
form of photocopies. This would enable an independent expert,
possibly abroad, to examine them, and also provide a safeguard in the
event of the possible destruction of the originals.
- Under
Article 8 of the Convention the applicants complained that they had
been denied full access to documents pertinent to their private and
family lives in that they had been refused the right to make
photocopies of them.
- On
8 December 2004 the Constitutional Court (Third Chamber) rejected the
complaint. It found no appearance of a violation of Article 6 §
1 of the Convention in the proceedings leading to the Regional
Court’s judgment of 17 February 2004. As to the alleged
violation of Article 8 of the Convention, the Constitutional Court
held that the Regional Court had correctly applied section 16(6) of
the Health Care Act of 1994 and that a fair balance had been struck
between the conflicting interests. Reference was made to the
explanatory report to that Act. Furthermore, Article 8 of the
Convention did not encompass a right to make photocopies of medical
documents.
2. Complaint of 25 June 2004
- On
25 June 2004 the remaining two applicants lodged a similar complaint
under Article 127 of the Constitution alleging a violation of, inter
alia, Articles 6 § 1 and 8 of the Convention as a result of
the conduct of the representatives of the Krompachy Hospital and in
the proceedings leading to the Košice
Regional Court’s judgment of 24 March 2004.
- On
27 October 2004 the Constitutional Court (Second Chamber) rejected
the complaint as being premature. The decision stated that the
plaintiffs had lodged an appeal on points of law against the part of
the Regional Court’s judgment by which the first-instance
decision to grant their claim for access to medical records had been
overturned.
D. Subsequent developments
- Subsequently
seven applicants were able to access their files and to make
photocopies thereof under the newly introduced Health Care Act 2004
(see paragraph 35 below) in circumstances which are set out in the
decision on the admissibility of the present application.
- As
regards the eighth applicant, Ms J. H., the Prešov
Hospital only provided her with a simple record of a surgical
procedure indicating that surgery had been performed on her and that
she had been sterilised during the procedure. On 22 May 2006 the
Director of the Prešov Hospital informed
the applicant that her complete medical file had not been
located and that it was considered lost. On 31 May 2007 the
Ministry of Health admitted that the Prešov
Hospital had violated the Health Care Act 2004 in that it had
failed to ensure the proper keeping of the medical file of Ms J. H.
II. RELEVANT DOMESTIC LAW
A. Code of Civil Procedure
- Article
3 guarantees to everyone the right to seek judicial protection of a
right which has been placed in jeopardy or violated.
- Under
Article 6, courts shall proceed with a case in cooperation with the
parties in a manner permitting the speedy and efficient protection of
persons’ rights.
- Article
78 § 1 provides that, prior to starting proceedings on the
merits, courts can secure evidence on the proposal of the person
concerned where it is feared that it will be impossible to take such
evidence later.
- Article
79 § 2 obliges a plaintiff to submit the documentary evidence
relied upon in an action, with the exception of evidence which the
plaintiff is unable to submit for external reasons.
- Pursuant
to Article 120 § 1, parties are obliged to produce evidence in
support of their arguments. The decision as to which evidence will be
taken lies with the court. Exceptionally, courts can take other
evidence than that proposed by the parties where it is necessary for
the determination of the point in issue.
B. Health
Care Act 1994
- Until
31 December 2004, the following provisions of Health Care Act
277/1994 (Zákon o zdravotnej
starostlivosti – “the
Health Care Act 1994”) were in force:
“Section 16 – Medical records
1. The keeping of medical records shall form
an inseparable part of health care.
2. All medical institutions ... shall be
obliged to keep medical records in written form ... The documents are
to be dated, signed by the person who established them, stamped and
numbered on each page ...
3. Medical records shall be archived for a
period of 50 years after the patient’s death. ...
5. A medical institution shall be obliged to
provide medical records on a specific written request and free of
charge, to a public prosecutor, investigator, police authority or
court in the form of excerpts, to the extent that they are relevant
in the context of criminal or civil proceedings. The medical records
as a whole cannot be put at the disposal of the above authorities.
6. A patient, his or her legal representative
... shall have the right to consult medical records and to make
excerpts thereof at the place [where the records are kept] ...
8. A medical institution shall provide an
expert appointed by a court with information from medical records to
the extent that it is necessary for preparing an expert opinion ...
11. An excerpt from a person’s medical
record ... shall contain exact and true data and give an overview of
the development of the health of the person concerned up to the date
when the excerpt is established. It shall be established in writing
on numbered pages.”
- The
relevant part of the Explanatory Report to the Health Care Act 1994
reads as follows:
“Medical records remain the property of the
medical institution concerned. They contain data about the patient
and often also about the members of his or her family or other
persons. That information being of a strictly confidential and
intimate nature, the obligation of non-disclosure extends to them in
their entirety. It is therefore necessary to define as precisely as
possible cases where a patient or other persons may acquaint
themselves with such information.”
C. Health Care Act 2004
- The
Health Care, Health Care Services and Amendment Act 576/2004 (Zákon
o zdravotnej starostlivosti, sluZbách súvisiacich
s poskytovaním zdravotnej starostlivosti a o zmene
a doplnení niektorých zákonov
– “the Health Care Act 2004”) came into
force on 1 November 2004 and became operative on 1 January 2005. It
repealed, inter alia, section 16 of the Health Care Act 1994.
Its relevant provisions read as follows:
“Section 25 – Access to data included in
medical records
1. Data included in medical records shall be made
available by means of consultation of the medical records to:
(a) the person concerned or his or her legal
representative, without any restriction; ...
(c) any person authorised in writing by the
person mentioned in point (a) ... subject to the signature of the
latter being certified in accordance with a special law ... to the
extent that it is specified in the authorisation; ...
(g) an expert appointed by a court or an authority in
charge of a criminal case or whom one of the parties has asked for an
opinion ...; the extent of data necessary for preparing the opinion
shall be determined by the expert ...
2. The persons entitled to consult medical records
shall have the right to make excerpts or copies of them at the place
where the records are kept to the extent indicated in paragraph 1.”
III. RECOMMENDATION OF THE COMMITTEE OF MINISTERS OF THE COUNCIL OF
EUROPE No. R (97) 5 ON THE PROTECTION OF MEDICAL DATA
- Point
8 of the Recommendation adopted on 13 February 1997 deals with the
rights of persons whose medical data have been collected. The
relevant part provides:
“Rights of access and of rectification
8.1. Every person shall be enabled to have access to
his/her medical data, either directly or through a health-care
professional or, if permitted by domestic law, a person appointed by
him/her. The information must be accessible in understandable form.
8.2 Access to medical data may be refused, limited or
delayed only if the law provides for this and if:
a. this constitutes a necessary measure in a
democratic society in the interests of protecting state security,
public safety, or the suppression of criminal offences; ...”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
- The
applicants complained that they had been unable to obtain photocopies
of their medical records under the Health Care Act 1994. They relied
on Article 8 of the Convention, which in its relevant part provides:
“1. Everyone has the right to respect
for his private and family life, ....
2. There shall be no interference by a public
authority with the exercise of this right except such as is in
accordance with the law and is necessary in a democratic society in
the interests of national security, public safety or the economic
well-being of the country, for the prevention of disorder or crime,
for the protection of health or morals, or for the protection of the
rights and freedoms of others.”
A. Arguments of the parties
1. The applicants
- The
applicants maintained that the mere possibility of consulting the
files and making handwritten excerpts thereof did not provide them
with effective access to the relevant documents concerning their
health. In particular, medical records contained charts, graphs,
drawings and other data which could not be properly reproduced
through handwritten notes. They were voluminous as a rule and their
transcript by hand was not only insufficient but also time consuming
and burdensome.
- The
originals of the records contained information which the applicants
considered important from the point of view of their moral and
physical integrity. In particular, the applicants feared that they
had been subjected to an intervention affecting their reproductive
status. The records would convey not only information about any such
intervention, but also whether the applicants had given consent to it
and in what circumstances. A typed or handwritten transcript of the
records could not faithfully represent the particular features of the
original records bearing, in some cases, the applicants’
signatures. With photocopies of the records the applicants would not
only be able to establish a basis for civil litigation but also to
demonstrate to their families and communities, where appropriate,
that their infertility was not a result of any deliberate action on
their part.
- Finally,
the applicants saw no justification for the Government’s
argument according to which submitting transcripts of the relevant
parts of the medical documents to prosecuting authorities or courts
protected their privacy to a greater extent than making copies of the
relevant files available.
2. The Government
- The
Government argued that the refusal to allow the applicants to make
photocopies of their medical files had been in accordance with the
relevant provisions of the Health Care Act 1994. It had been
compatible with the applicants’ right to respect for their
private and family life in the circumstances. In particular, the
applicants had been allowed to study all the records and to make
handwritten excerpts thereof.
- The
refusal to allow the applicants to photocopy their medical records
had been justified, at the relevant time, by the State’s
obligation to protect the relevant information from abuse. The State
enjoyed a margin of appreciation in regulating similar issues. It had
not been overstepped in the case of the applicants, who had not been
prevented from obtaining all relevant information related to their
health. The Contracting States’ positive obligations under
Article 8 did not extend to an obligation to allow persons to make
photocopies of their medical records.
- Under
the relevant law health institutions were obliged, upon a written
request, to provide relevant information contained in the medical
records of the person making the request, in the form of written
excerpts, to police investigators, prosecutors or a court. That
procedure provided the advantage that, unlike a copy of the medical
file, it gave access to the relevant parts of the files without
disclosing other information which was not related to the
subject-matter of the proceedings.
B. The Court’s assessment
- The
complaint in issue concerns the exercise by the applicants of their
right of effective access to information concerning their health and
reproductive status. As such it is linked to their private and family
lives within the meaning of Article 8 (see, mutatis mutandis,
Roche v. the United Kingdom [GC], no. 32555/96, §
155, ECHR 2005 X, with further reference).
- The
Court reiterates that, in addition to the primarily negative
undertakings in Article 8 of the Convention, there may be positive
obligations inherent in effective respect for one’s private
life. In determining whether or not such a positive obligation
exists, it will have regard to the fair balance that has to be struck
between the general interest of the community and the competing
interests of the individual concerned, the aims in the second
paragraph of Article 8 being of a certain relevance (see, for
example, Gaskin v. the United Kingdom, 7 July 1989, § 42,
Series A no. 160).
- The
existence of such a positive obligation was established by the Court,
among other circumstances, where applicants sought access to
information about risks to one’s health and well-being
resulting from environmental pollution (Guerra and Others v.
Italy, 19 February 1998, § 60, Reports 1998 I),
information which would permit them to assess any risk resulting from
their participation in nuclear tests (McGinley and Egan v. the
United Kingdom, 9 June 1998, § 101, Reports of Judgments
and Decisions 1998 III) or tests involving exposure to toxic
chemicals (Roche v. the United Kingdom [GC], referred to
above). The Court held, in particular, that a positive obligation
arose to provide an “effective and accessible procedure”
enabling the applicants to have access to “all relevant and
appropriate information” (see, for example, Roche v.
the United Kingdom [GC] cited above, § 162, with further
references).
Similarly,
such a positive obligation was found to exist where applicants sought
access to information to social service records containing
information about their childhood and personal history (see Gaskin
v. the United Kingdom, cited above and M.G. v. the United
Kingdom, no. 39393/98, § 31, 24 September 2002).
- Bearing
in mind that the exercise of the right under Article 8 to respect for
one’s private and family life must be practical and effective
(see, for example, Phinikaridou v. Cyprus, no. 23890/02, §
64, ECHR 2007 ... (extracts), with further reference), the Court
takes the view that such positive obligations should extend, in
particular in cases like the present one where personal data are
concerned, to the making available to the data subject of copies of
his or her data files.
- It
can be accepted that it is for the file holder to determine the
arrangements for copying personal data files and whether the cost
thereof should be borne by the data subject. However, the Court does
not consider that data subjects should be obliged to specifically
justify a request to be provided with a copy of their personal data
files. It is rather for the authorities to show that there are
compelling reasons for refusing this facility.
- The
applicants in the present case obtained judicial orders permitting
them to consult their medical records in their entirety, but they
were not allowed to make copies of them under the Health Care Act
1994. The point to be determined by the Court is whether in that
respect the authorities of the respondent State complied with their
positive obligation and, in particular, whether the reasons invoked
for such a refusal were sufficiently compelling to outweigh the
Article 8 right of the applicants to obtain copies of their medical
records.
- Although
it was not for the applicants to justify the requests for copies of
their own medical files (see paragraph 48 above), the Court would
nevertheless underline that the applicants considered that the
possibility of obtaining exclusively handwritten excerpts of the
medical files did not provide them with effective access to the
relevant documents concerning their health. The original records,
which could not be reproduced manually, contained information which
the applicants considered important from the point of view of their
moral and physical integrity as they suspected that they had been
subjected to an intervention affecting their reproductive status.
- The
Court also observes that the applicants considered it necessary to
have all the documentation in the form of photocopies so that an
independent expert, possibly abroad, could examine them, and also in
order to safeguard against the possible inadvertent destruction of
the originals are of relevance. As to the latter point, it cannot be
overlooked that the medical file of one of the applicants had
actually been lost (see paragraph 27 above).
- The
national courts mainly justified the prohibition on making copies of
medical records by the need to protect the relevant information from
abuse. The Government relied on the Contracting States’ margin
of appreciation in similar matters and considered that the Slovak
authorities had complied with their obligations under Article 8 by
allowing the applicants or their representatives to study all the
records and to make handwritten excerpts thereof.
- The
arguments put forward by the domestic courts and the Government are
not sufficiently compelling, with due regard to the aims set out in
the second paragraph of Article 8, to outweigh the applicants’
right to obtain copies of their medical records.
- In
particular, the Court does not see how the applicants, who had in any
event been given access to the entirety of their medical files, could
abuse information concerning their own persons by making photocopies
of the relevant documents.
- As
to the argument relating to possible abuse of the information by
third persons, the Court has previously found that protection of
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 and that respecting the
confidentiality of health data is a vital principle in the legal
systems of all the Contracting Parties to the Convention (see I.
v. Finland, no. 20511/03, § 38, 17 July 2008).
- However,
the risk of such abuse could have been prevented by means other than
denying copies of the files to the applicants. For example,
communication or disclosure of personal health data that may be
inconsistent with the guarantees in Article 8 of the Convention can
be prevented by means such as incorporation in domestic law of
appropriate safeguards with a view to strictly limiting the
circumstances under which such data can be disclosed and the scope of
persons entitled to accede to the files (see also Z v. Finland,
judgment of 25 February 1997, Reports 1997-I, §§
95-96).
- The
fact that the Health Care Act 2004 repealed the relevant provision of
the Health Care Act 1994 and explicitly provides for the possibility
for patients or persons authorised by them to make copies of medical
records is in line with the above conclusion. That legislative
change, although welcomed, cannot affect the position in the case
under consideration.
- There
has therefore been a failure to fulfil the positive obligation to
ensure effective respect for the applicants’ private and family
lives in breach of Article 8 of the Convention.
II. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION
- The
applicants complained that their right of access to a court had been
violated as a result of the refusal to provide them with copies of
their medical records. They relied on Article 6 § 1 of the
Convention, which in its relevant part provides:
“In the determination of his civil rights and
obligations ... everyone is entitled to a ... hearing ... by [a] ...
tribunal ...”
- The
applicants argued that they had been barred from having effective
access to their medical records and from securing the evidence
included in those records by means of photocopies. Having copies of
the files was important for later civil litigation concerning any
possible claims for damages on their part and for compliance with the
burden of proof, which would be incumbent on the applicants as
plaintiffs.
- Obtaining
copies of the medical records was essential for an assessment, with
the assistance of independent medical experts of the applicants’
choice, of the position in their cases and of the prospects of
success of any future civil actions. The latter element was important
because the applicants, who were living on social benefits, would be
ordered to reimburse the other party’s costs if the courts
dismissed their action.
- The
applicants considered that they could not obtain redress by means of
asking a court under Article 78 of the Code of Civil Procedure to
secure the files as evidence in the proceedings. They relied on
section 16(5) of the Health Care Act 1994, which allowed courts to
receive information from medical records exclusively in the form of
excerpts but not the records as such or their copies. The domestic
courts were thus unable to directly check any inconsistency in the
applicants’ medical records.
- The
Government referred to the conclusions reached by the Constitutional
Court on 8 December 2004. Consulting and making excerpts from the
medical documents had provided the applicants with a sufficient
opportunity to assess the position in their cases and initiate civil
proceedings if appropriate. The relevant provisions of the Code of
Civil Procedure included guarantees for the applicants to be able
effectively to seek redress before the courts in respect of any
infringement of their rights which they might establish during the
consultation of their medical records. The use of excerpts of the
files had the advantage of protecting confidential information and
personal data which had no bearing on the litigation in issue.
- The
Court reiterates that the right of access to a court is an inherent
aspect of the safeguards enshrined in Article 6. It secures to
everyone the right to have a claim relating to his civil rights and
obligations brought before a court. Where the individual’s
access is limited either by operation of law or in fact, the Court
will examine whether the limitation imposed impaired the essence of
the right and, in particular, whether it pursued a legitimate aim and
there was a reasonable relationship of proportionality between the
means employed and the aim sought to be achieved (see Ashingdane
v. the United Kingdom, 28 May 1985, § 57, Series A no. 93).
- The
Court accepts the applicants’ argument that they had been in a
state of uncertainty as regards their health and reproductive status
following their treatment in the two hospitals concerned and that
obtaining the relevant evidence, in particular in the form of
photocopies, was essential for an assessment of the position in their
cases from the perspective of effectively seeking redress before the
courts in respect of any shortcomings in their medical treatment.
- The
protection of a person’s rights under Article 6 requires, in
the Court’s view, that the guarantees of that provision should
extend to a situation where, like the applicants in the present case,
a person has, in principle, a civil claim but considers that the
evidential situation resulting from the legal provisions in force
prevents him or her from effectively seeking redress before a court
or renders the seeking of such judicial protection difficult without
appropriate justification.
- It
is true that the statutory bar at the material time on the making
available of copies of the records did not entirely bar the
applicants from bringing a civil action on the basis of information
obtained in the course of the consultation of their files. However,
the Court considers that section 16(6) of the Health Care Act 1994
imposed a disproportionate limitation on their ability to present
their cases to a court in an effective manner. It is relevant in this
respect that the applicants considered the original form of the
records, which could not be reproduced manually and which, in
accordance with the above-cited provision, could not be made
available to either the applicants or the courts (compare and
contrast in this connection the McGinley and Egan case (cited
above, § 90)), decisive for the determination of their cases.
- When
examining the facts of the case under Article 8 of the Convention the
Court has found no sufficiently strong justification for preventing
the applicants from obtaining copies of their medical records. For
similar reasons, that restriction cannot be considered compatible
with an effective exercise by the applicants of their right of access
to a court.
- There
has therefore been a violation of Article 6 § 1 of the
Convention.
III. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION
- The
applicants complained that they had no effective remedy at their
disposal in respect of their above complaints under Article 8 and
Article 6 § 1 of the Convention. They alleged a violation of
Article 13 of the Convention, which provides:
“Everyone whose rights and freedoms as set forth
in [the] 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 argued that the applicants had at their disposal an
effective remedy, namely a complaint under Article 127 of the
Constitution.
A. Alleged violation of Article 13 in conjunction with Article 8
- The
Court recalls that Article 13 does not guarantee a remedy whereby a
law as such can be challenged before a domestic organ (see M.A.
and 34 Others v. Finland (dec.), no. 7793/95, 10 June 2003). It
follows from the terms of the applicants’ submissions that it
is basically the legislation as such which they attack. However, as
stated above, Article 13 does not guarantee a remedy for such
complaints.
In
these circumstances, the Court concludes that there has been no
violation of Article 13 taken together with Article 8 of the
Convention.
B. Alleged violation of Article 13 in conjunction with Article 6 §
1
- In
view of its conclusion in relation to Article 6 § 1 (see
paragraph 69 above), the Court does not consider it necessary to
examine separately the complaint in relation to Article 13, the
requirements of which are less strict than and absorbed by those of
Article 6 § 1 in this case (see also McGinley and Egan v. the
United Kingdom referred to above, § 106).
IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
- The
eight applicants claimed 15,000 euros (EUR) each in respect of
non-pecuniary damage. They submitted that they had been unable to
obtain photocopies of their medical records for three years, as a
result of which they had experienced anxiety about the state of their
health and reproductive abilities. Their personal lives had been
thereby affected.
- The
Government considered that claim to be excessive.
- The
Court accepts that the applicants suffered non-pecuniary damage which
cannot be remedied by the mere finding of a violation. Making its
assessment on an equitable basis, the Court therefore awards each of
the eight applicants EUR 3,500 in respect of non-pecuniary damage.
B. Costs and expenses
- The
applicants claimed EUR 6,042 for their representation in the domestic
proceedings by Mrs V. Durbáková and
the Centre for Civil and Human Rights in Košice. They
claimed a total of EUR 11,600 in respect of the proceedings before
the Court. Finally, the applicants claimed EUR 812 in respect of the
administrative costs of their legal representatives (preparation of
legal documents, photocopying, telephone calls, sending of faxes and
postage) and EUR 1,127.50 for translation of documents and expenses
incurred in correspondence with the Court.
- The
Government considered that the claims relating to the applicants’
representation and the administrative costs were overstated. They had
no objection to the sums claimed in respect of translation costs and
international postage.
- The
Court reiterates that costs and expenses will not be awarded under
Article 41 unless it is established that they were actually and
necessarily incurred and are also reasonable as to quantum.
Furthermore, legal costs are only recoverable in so far as they
relate to the violation found (see Rule 60 and, among other
authorities, Iatridis v. Greece
(just satisfaction)
[GC], no. 31107/96, § 54, ECHR 2000-XI;
Beyeler v. Italy (just satisfaction) [GC], no. 33202/96, §
27, 28 May 2002; and Sahin v. Germany [GC], no. 30943/96, §
105, ECHR 2003-VIII).
- Having
regard to the documents submitted, the number of applicants, the
scope of the proceedings at both national level and before the Court
and the fact that the applicants were only partly successful in the
Convention proceedings, the Court awards the applicants a total of
EUR 8,000 in respect of costs and expenses, together with any tax
that may be chargeable to the applicants.
C. Default interest
- The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT
- Holds unanimously that there has been a
violation of Article 8 of the Convention;
- Holds by a majority that there has been a
violation of Article 6 § 1 of the Convention;
- Holds unanimously that there has been no
violation of Article 13 in conjunction with Article 8 of the
Convention;
- Holds unanimously that a separate examination of
the complaint under Article 13 in conjunction with Article 6 § 1
of the Convention is not called for;
- Holds unanimously
(a)
that the respondent State is to pay, within three months from the
date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, the following
amounts:
(i) EUR
3,500 (three thousand five hundred euros) to each applicant, plus any
tax that may be chargeable, in respect of non-pecuniary damage;
(ii) EUR
8,000 (eight thousand euros) jointly to all applicants, plus any tax
that may be chargeable to the applicants, in respect of costs and
expenses;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amounts at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
- Dismisses unanimously the remainder of the
applicants’ claim for just satisfaction.
Done in English, and notified in writing on 28 April 2009, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Lawrence Early Nicolas Bratza
Registrar President
In accordance with Article 45 § 2 of the Convention and Rule 74
§ 2 of the Rules of Court, the partly dissenting opinion of
Judge Šikuta is annexed
to this judgment.
N.B.
T.L.E.
PARTLY DISSENTING OPINION OF JUDGE ŠIKUTA
To my
regret, I cannot agree with the majority’s conclusion that
there has been a violation of Article 6 of the Convention, for the
following reasons.
Since
the Chamber was unanimous in finding the violation of Article 8 of
the Convention, which was the real substance of the case, I was of
the opinion that there was no need to examine the complaint under
Article 6 of the Convention.
The
national courts at two levels of jurisdiction, in two different sets
of civil proceedings, granted the applicants’ claim and ordered
the J.A. Reiman University Hospital in Prešov and the Health
Care Centre in Krompachy to permit all the applicants and their
representatives to consult their medical records and to make
handwritten excerpts thereof. As regards access to medical records,
that was the maximum that was allowed and permitted according to the
relevant national legislation in force at the material time.
Accordingly, the courts dismissed their request to make a photocopy
of the medical documents.
The
fact that the Court has found a violation of Article 8 of the
Convention because the applicants had no possibility of making copies
of their medical records does not mean that they had no access to a
court.
I do
agree that in such a situation the applicants had only a limited
amount of evidence and information in their hands since they were not
allowed to make copies of medical records.
I do
not agree that this amount of information in their possession was not
sufficient to assess the position in their cases and that that amount
of information was not sufficient to initiate civil proceedings if
appropriate. I do not agree that the unavailability of copies of the
records barred the applicants from starting a lawsuit on the basis of
the information obtained in the course of the consultation of their
files.
Firstly:
If
additional information to that in the possession of the applicants
were needed in the course of civil proceedings, a national court,
according to the standard practice, would appoint an expert, whose
role would be to study originals of the medical records, to examine
the state of health of the applicants and to reply to qualified
medical questions put forward by the court dealing with the case.
This procedure would come into play regardless of whether the
applicants had available copies of all medical records, and
regardless of whether the applicants also attached to the lawsuit a
private expert opinion prepared by another expert upon their request.
The national court would be obliged, after the commencement of the
proceedings, to appoint of its own motion another independent expert
from the List of Court Experts, who would have access to all
originals of medical records in line with Section 16 of the
Health Care Act 1994 (Zákon o zdravotnej starostlivosti č.
277/1994 Z.z.).
Secondly:
The
applicants did not even try to bring such civil proceedings.
Therefore the arguments of the applicants to the effect, that the
lack of copies was very important for potential civil litigation
concerning any possible claims for damages, for discharge of the
burden of proof and for the assessment of the prospects of success of
any future civil actions are of a hypothetical and speculative
nature. Here I fully agree with the Constitutional Court’s
conclusions. In addition, if the applicants were unable to support
their lawsuit sufficiently with more evidence because of statutory
restrictions, the courts would not reject such lawsuit and would not
disadvantage the applicants as regards their burden of proof, but
would order both health institutions – the University Hospital
in Prešov and the Health Care Centre in Krompachy, to
disclose all originals or relevant excerpts of the applicants’
medical records.
Thirdly:
Such
broad and wide interpretation of the right of access to a court goes
far beyond the Court’s established case-law. In the case of
McGinley and Egan v. The United Kingdom (judgment of 9 June 1998),
which is to a certain extent the most similar to this case, the Court
did not find a violation of Article 6 § 1 of the
Convention, on the basis that a procedure was provided for the
disclosure of documents which the applicants failed to utilise, and
under such circumstances it could not be said that the State denied
the applicants effective access to the PAT (Pension Appeal Tribunal).
We now have the same situation in the instant case; the applicants
could initiate civil proceedings, in the course of which all relevant
medical records of the applicants would be disclosed according to
Section 16 of the 1994 Health Care Act. The applicants did not bring
any such proceedings and they therefore failed to utilise an
existing available procedure.
In
conclusion, I am of the opinion, that the applicants in the instant
case did have a limited amount of information in their hands since
they were not allowed to make copies of all medical records, but they
were not limited to such an extent and in such a manner, as would bar
their effective access to a court and would violate Article 6 §
1 of the Convention.
