EHRM, 23-02-2016, nr. 40378/06

The Government argued that, by carrying out the actions in dispute, the State had fulfilled its positive obligation under Article 8 in pursuing the legitimate aim of the protection of health and rights of its citizens. The authorities had acted in full compliance with the legislation then in force, which provided that the Ministry of Healthcare was entitled to request material from the Committee for Healthcare of the Administration of St Petersburg, and the Committee had a corresponding duty to submit to the Ministry detailed information in response. The Government referred to: the Regulations on the Ministry of Healthcare, approved by decision no. 284 of 9 April 2002 of the Government of the Russian Federation (see paragraph 28 above); the Regulations on the Committee for Healthcare, approved by order no. 46-r of the Governor of St Petersburg of 23 December 1996 (see paragraph 29 above); decree no. 2534-VII of 12 April 1968 of the Presidium of the Supreme Council of the USSR on the examination of complaints lodged by individuals (see paragraph 30 above); and the Regulations on the System of Departmental Control over the Quality of Medical Treatment, approved by joint order no. 363/77 of the Ministry of Healthcare and the Federal Compulsory Medical Insurance Fund of 24 October 1996 (see paragraph 31 above).

In addition, the Government argued that obtaining the applicant's medical information without her consent was lawful under paragraph 4 (5) of Article 61 of the Basic Principles of Public Health Law (see paragraph 26 above), as there were grounds to believe that an individual had been harmed as a result of unlawful actions.

Lastly, the Government argued that the information concerning the health care provided to the applicant and her children had not been made public. It had become known to a limited number of medical experts bound by the requirements of confidentiality pursuant to Article 61 § 2 of the Basic Principles of Public Health Law. There had been no proof that the applicant's medical information had been accessible to a wide circle of public servants. This distinguished the present case from the case of Avilkina and Others (cited above), in which the applicants' medical information had been transferred to investigating authorities without the applicants' consent. Relying on the case of M.S. v. Sweden (cited above, §§ 17, 42 and 43), in which the Court had found no violation of Article 8 in relation to the communication of the applicant's medical records by a clinic to the Social Insurance Office, the Government considered that a ‘fair balance’ had been struck in the applicant's case.

While acknowledging that the authorities had pursued the legitimate aim of protecting the health and rights of others, the applicant argued that the interference had not been ‘in accordance with the law’. The regulations on the Ministry of Healthcare and the decree on the examination of individual complaints, referred to by the Government, contained no provisions which would entitle health-care authorities to obtain medical information without a patient's explicit consent in the event of allegations of inadequate health care. The applicant submitted that the above regulations were not sufficiently foreseeable in their application to meet the ‘quality of law’ requirement under Article 8 § 2. In any event, the confidentiality rule in respect of medical information, clearly established in the domestic law, prevailed over those regulations. Article 61 of the Basic Principles of Public Health Law provided an exhaustive list of grounds for disclosing medical information without a patient's consent. The examination of individual complaints and allegations of inadequate health care was not among those grounds.

The applicant further argued that the interference had not been proportionate to the aim pursued. The telegrams sent by the applicants' mother had aimed to highlight problems relating to the general state of medical treatment for newborns in St Petersburg, and not her individual family situation. The Government had failed to show any relevant and sufficient reasons or any pressing social need for obtaining and examining the applicant's medical records without her consent. The details and state of her intimate health, in particular her therapeutic abortions and suspected urogenital infection, had been made available to a broad circle of officials at the Committee and the Ministry. This had humiliated and insulted the applicant, who was a lawyer and had dealt with the St Petersburg authorities, in particular the Committee for Healthcare, in her professional life. The applicant considered that the authorities had aimed to find an explanation for her child's death other than the lack of capacity at Children's hospitals specialising in emergency medical treatment, as confirmed by the Committee's letter to the Ministry of 12 September 2003, which contained false and discrediting information about her urogenital mycoplasmosis infection. She had learned of that letter at one of the court hearings and it had been the subject of separate proceedings which were ongoing.

Lastly, the applicant argued that, as to the fact that the information from her medical records had been forwarded to the Ministry of Healthcare, the Government had failed to indicate any legitimate aim for that interference. Arguably, the report had been forwarded to the Ministry in order to inform it of the results of the investigation into the child's death in the context of a broader problem concerning the organisation of resuscitation units for newborns in the city; however, the Committee's letter of 12 September 2003 had no relevance to the allegations of the applicant's mother.

The Court reiterates that the wording ‘in accordance with the law’ requires the impugned measure both to have some basis in domestic law and to be compatible with the rule of law, which is expressly mentioned in the Preamble to the Convention and inherent in the object and purpose of Article 8. The law must thus be adequately accessible and foreseeable, that is, formulated with sufficient precision to enable the individual — if need be with appropriate advice — to regulate his conduct (see S. and Marper v. the United Kingdom [GC], nos. 30562/04 and 30566/04, § 95, ECHR 2008). The foreseeability requirement also means giving individuals an adequate indication as to the circumstances in which and the conditions on which the authorities are entitled to resort to measures affecting their rights under the Convention (see Fernández Martínez v. Spain [GC], no. 56030/07, § 117, ECHR 2014 (extracts)).

The function of clarification and interpretation of the provisions of domestic law belongs primarily to domestic judicial authorities. While the Court is not in a position to substitute its own judgment for that of the national courts and its power to review compliance with domestic law is limited, it is the Court's function to review the reasoning adduced by domestic judicial authorities from the point of view of the Convention. In order to protect a person against arbitrariness, it is not sufficient to provide a formal possibility of bringing adversarial proceedings to contest the application of a legal provision to his or her case (see Kryvitska and Kryvitskyy v. Ukraine, no. 30856/03, § 43, 2 December 2010, with further references). Domestic courts must undertake a meaningful review of the authorities' actions affecting rights under the Convention in order to comply with the lawfulness requirement (see C.G. and Others v. Bulgaria, no. 1365/07, §§ 42–49, 24 April 2008).

The Court must therefore determine whether the Committee's actions interfering with the applicant's private life were carried out and subsequently reviewed in line with the requirements of Article 8 § 2, as set out above.

The Court observes that the Committee did not rely on any provision of domestic law in carrying out the actions in dispute. In the ensuing judicial review proceedings it was found that those actions had complied with Article 61 of the Basic Principles of Public Health Law, a federal law which provided for the guarantee of non-disclosure of confidential medical information without a patient's consent (see paragraphs 25 and 26 above). The decisive question is to what extent the actions in dispute were foreseeable by the applicant.

In the domestic courts' view, the guarantee of non-disclosure of confidential medical information without a patient's consent did not extend to the situations which obtained in the applicant's case (see paragraphs 16–18 and 22 above). Firstly, the guarantee in question did not apply to the disclosure of such information by the Committee to the Ministry, as the latter was a supervising authority within the State healthcare system. Secondly, it did not apply to the disclosure of information taken from a patient's medical records rather than the disclosure of the records per se.

The Court notes that the guarantee, as formulated in Article 61 of the Basic Principles of Public Health Law, contained an exhaustive list of exceptions to the general rule of non-disclosure of confidential medical information without a patient's consent (see paragraph 26 above). This is confirmed by the highest courts' practice in relation to Article 61 of the Basic Principles, interpreted in the light of the constitutional rights (see paragraphs 23–24 and 27 above). The domestic courts in the applicant's case did not rely on any of those exceptions in making their findings. The Government's suggestion that the actions in dispute had been covered by the exception provided for in paragraph 4 (5) of Article 61 (see paragraph 44 above) goes beyond the scope of the findings of the domestic courts. It did not form part of the case at domestic level and it is therefore not necessary for the Court to examine it.

The Court further notes that, in finding that the Committee's actions in collecting, examining and disclosing the applicant's medical data to the Ministry did not violate the confidentiality of the applicant's medical data, the domestic courts relied on the general duty of the Committee to provide the Ministry with detailed information in reply to the latter's requests. In so doing, they failed to refer to any provisions of domestic law on which their finding could have been based.

In their submissions to the Court the Government suggested a number of legal provisions relating to the general powers of the Ministry and Committee which could, in their view, be relevant (see paragraph 43, together with paragraphs 28–31 above). Even assuming that the domestic courts had intended to rely on those provisions, the Court would note that they included no specific rules concerning the confidentiality of medical data and were contained in legal instruments secondary to the Basic Principles of Public Health Law (a federal law) or the Constitution (see Articles 4 and 15 of the Constitution concerning the supremacy of the Constitution and federal laws in paragraph 23 above).

The Court further notes that the definition of confidential medical information in Article 61 was substance- and not form-based. Therefore, the domestic courts' distinguishing of the disclosure of medical records per se from the disclosure of information derived from medical records had no regard to the content of the information disclosed and lacked any legal basis.

In view of the foregoing considerations, the Court concludes that, despite having the formal option to seek judicial review of the Committee's actions, the applicant did not enjoy the minimum degree of protection against arbitrariness on the part of the authorities. The actions in dispute did not constitute a foreseeable application of the relevant Russian law.

The interference with the applicant's right to respect for private life was therefore not in accordance with the law within the meaning of Article 8 § 2 of the Convention. That being so, the Court is not required to determine whether this interference pursued a legitimate aim and, if so, whether it was proportionate to the aim pursued.

There has therefore been a violation of Article 8.