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128
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K.U. v. Finland
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2 December 2008
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This case concerned an advertisement of a sexual nature posted about a 12-year old boy on an Internet dating site. Under Finnish legislation in place at the time7, the police and the courts could not require the Internet provider to identify the person who had posted the ad. In particular, the service provider refused to identify the person responsible, claiming it would constitute a breach of confidentiality.
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The Court held that there had been a violation of Article 8 (right to respect for private and family life) of the Convention. It considered that posting the ad was a criminal act which made a minor a target for paedophiles. The legislature should have provided a framework for reconciling the confidentiality of Internet services with the prevention of disorder or crime and the protection of the rights and freedoms of others, and in particular children and other vulnerable individuals.
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New technologies
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Internet
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[
"I. THE CIRCUMSTANCES OF THE CASE",
"6. The applicant was born in 1986.",
"7. On 15 March 1999 an unidentified person or persons placed an advertisement on an Internet dating site in the name of the applicant, who was 12 years old at the time, without his knowledge. The advertisement mentioned his age and year of birth, gave a detailed description of his physical characteristics, a link to the web page he had at the time, which showed his picture, as well as his telephone number, which was accurate save for one digit. In the advertisement, it was claimed that he was looking for an intimate relationship with a boy of his age or older “to show him the way”.",
"8. The applicant became aware of the advertisement on the Internet when he received an e-mail from a man, offering to meet him and “then to see what you want”.",
"9. The applicant ’ s father requested the police to identify the person who had placed the advertisement in order to bring charges against that person. The service provider, however, refused to divulge the identity of the holder of the so-called dynamic Internet Protocol ( IP ) address in question, regarding itself bound by the confidentiality of telecommunications as defined by law.",
"10. The police then asked the Helsinki District Court ( käräjäoikeus, tingsrätten ) to oblige the service provider to divulge the said information pursuant to section 28 of the Criminal Investigations Act ( esitutkintalaki, förundersökningslagen; Act no. 449/1987, as amended by Act no. 692/1997).",
"11. In a decision issued on 19 January 2001, the District Court refused since there was no explicit legal provision authorising it to order the service provider to disclose telecommunications identification data in breach of professional secrecy. The court noted that by virtue of Chapter 5a, section 3, of the Coercive Measures Act ( pakkokeinolaki, tvångsmedelslagen; Act no. 450/198 7 ) and section 18 of the Protection of Privacy and Data Security in Telecommunications Act ( laki yksityisyydensuojasta televiestinnässä ja teletoiminnan tietoturvasta, lag om integritetsskydd vid telekommunikation och dataskydd inom televerksamhet; Act no. 565/1999) the police had the right to obtain telecommunications identification data in cases concerning certain offences, notwithstanding the obligation to observe secrecy. However, malicious misrepresentation was not such an offence.",
"12. On 14 March 2001 the Court of Appeal ( hovioikeus, hovrätten ) upheld the decision and on 31 August 2001 the Supreme Court ( korkein oikeus, högsta domstolen ) refused leave to appeal.",
"13. The person who had answered the dating advertisement and contacted the applicant was identified through his e-mail address.",
"14. The managing director of the company which provided the Internet service could not be charged, because in his decision of 2 April 2001 the prosecutor found that the alleged offence had become time-barred. The alleged offence was a violation of the Personal Data Act ( henkilötietolaki, personuppgiftslagen; Act no. 523/99, which came into force on 1 June 1999 ). More specifically, the service provider had published a defamatory advertisement on its website without verifying the identity of the sender.",
"V. THIRD - PARTY SUBMISSIONS",
"33. The Helsinki Foundation for Human Rights submitted that the present case raises the question of balancing the protection of privacy, honour and reputation on the one hand and the exercise of freedom of expression on the other. It took the view that the present case offers the Court an opportunity to define the State ’ s positive obligations in this sphere and thereby to promote common standards in the use of the Internet throughout the member States.",
"34. It pointed out that the Internet is a very special method of communication and one of the fundamental principles of its use is anonymity. The high level of anonymity encourages free speech and expression of various ideas. On the other hand, the Internet is a powerful tool for defaming or insulting people or violating their right to privacy. Due to the anonymity of the Internet, the victim of a violation is in a vulnerable position. Contrary to traditional media, the victim cannot easily identify the defaming person due to the fact that it is possible to hide behind a pseudonym or even to use a false identity."
] |
[
"II. RELEVANT DOMESTIC LAW AND PRACTICE",
"15. The Finnish Constitution Act ( Suomen hallitusmuoto, Regeringsform för Finland; Act no. 94/1919, as amended by Act no. 969/1995) was in force until 1 March 2000. Its section 8 corresponded to Article 10 of the current Finnish Constitution ( Suomen perustuslaki, Finlands grundlag; Act no. 731/1999), which provides that everyone ’ s right to private life is guaranteed.",
"16. At the material time, Chapter 27, Article 3, of the Penal Code ( rikoslaki, strafflagen; Act no. 908/1974) provided:",
"“A person who in a manner other than that stated above commits an act of malicious misrepresentation against another by a derogatory statement, threat or other degrading act shall be sentenced for malicious misrepresentation to a fine or to imprisonment for a maximum period of three months.",
"If the malicious misrepresentation is committed in public or in print, writing or a graphic representation disseminated by the guilty party or which the guilty party causes, the person responsible shall be sentenced to a fine or to imprisonment for a maximum period of four months.”",
"17. At the material time, Chapter 5a, section 3 of the Coercive Measures Act provided:",
"“ Preconditions of telecommunications monitoring",
"Where there is reason to suspect a person of",
"( 1) an offence punishable by not less than four months ’ imprisonment;",
"( 2) an offence against a computer system using a terminal device, a narcotics offence; or",
"( 3) a punishable attempt to commit an offence referred to above in this section;",
"the authority carrying out the criminal investigation may be authorised to monitor a telecommunications connection in the suspect ’ s possession or otherwise presumed to be in his use, or temporarily to disable such a connection, if the information obtained by the monitoring or the disabling of the connection can be assumed to be very important for the investigation of the offence ...”",
"18. Section 18, subsection 1(1) of the Protection of Privacy and Data Security in Telecommunications Act, which came into force on 1 July 1999 and was repealed on 1 September 2004, provided:",
"“Notwithstanding the obligation of secrecy provided for in section 7, the police have the right to obtain:",
"(1) identification data on transmissions to a particular transcriber connection, with the consent of the injured party and the owner of the subscriber connection, necessary for the purpose of investigating an offence referred to in Chapter 16, Article 9 ( a ), Chapter 17, Article 13 § 2 or Chapter 24, Article 3 ( a ) of the Penal Code (Act no. 39/1889) ...”",
"19. Section 48 of the Personal Data Act provides that the service provider is under criminal liability to verify the identity of the sender before publishing a defamatory advertisement on its website. Section 47 provides that the service provider is also liable in damages.",
"20. At the material time, processing and publishing sensitive information concerning sexual behaviour on an Internet server without the subject ’ s consent was criminalised as a data protection offence in section 43 of the Personal Files Act ( Act no. 630/1995 ) and Chapter 38, Article 9 ( Act no. 578/1995) of the Penal Code, and as a data protection violation in section 44 of the Personal Files Act. Furthermore, it could have caused liability in damages by virtue of section 42 ( Act no. 471/1987) of the said Act.",
"21. Section 17 of the Exercise of Freedom of Expression in Mass Media Act ( laki sanavapauden käyttämisestä joukkoviestinnässä, lagen om yttrandefrihet i masskommunikation; Act no. 460/2003), which came into force on 1 January 2004, provides:",
"“ Release of identifying information for a network message",
"At the request of an official with the power of arrest, a public prosecutor or an injured party, a court may order the keeper of a transmitter, server or other similar device to release information required for the identification of the sender of a network message to the requester, provided that there are reasonable grounds to believe that the contents of the message are such that providing it to the public is a criminal offence. However, the release of the identifying information to the injured party may be ordered only in the event that he or she has the right to bring a private prosecution for the offence. The request shall be filed with the District Court of the domicile of the keeper of the device, or with the Helsinki District Court, within three months of the publication of the message in question. The court may reinforce the order by imposing a threat of a fine.”",
"III. RELEVANT INTERNATIONAL MATERIALS",
"A. The Council of Europe",
"22. The rapid development of telecommunications technologies in recent decades has led to the emergence of new types of crime and has also enabled the commission of traditional crimes by means of new technologies. The Council of Europe recognised the need to respond adequately and rapidly to this new challenge as far back as in 1989, when the Committee of Ministers adopted Recommendation No. R (89) 9 on computer-related crime. Resolved to ensure that the investigating authorities possessed appropriate special powers in investigating computer-related crimes, in 1995 the Committee of Ministers adopted Recommendation No. R (95) 13 concerning problems of criminal procedural law connected with information technology. In point 12 of the principles appended thereto, it recommended that :",
"“Specific obligations should be imposed on service providers who offer telecommunication services to the public, either through public or private networks, to provide information to identify the user, when so ordered by the competent investigating authority.”",
"23. The other principles relating to the obligation to cooperate with the investigating authorities stated :",
"“9. Subject to legal privileges or protection, most legal systems permit investigating authorities to order persons to hand over objects under their control that are required to serve as evidence. In a parallel fashion, provisions should be made for the power to order persons to submit any specified data under their control in a computer system in the form required by the investigating authority.",
"10. Subject to legal privileges or protection, investigating authorities should have the power to order persons who have data in a computer system under their control to provide all necessary information to enable access to a computer system and the data therein. Criminal procedural law should ensure that a similar order can be given to other persons who have knowledge about the functioning of the computer system or measures applied to secure the data therein.”",
"24. In 1996, the European Committee on Crime Problems set up a committee of experts to deal with cybercrime. It was felt that, although the previous two recommendations on substantive and procedural law had not gone unheeded, only a binding international instrument could ensure the necessary efficiency in the fight against cyberspace offences. The Convention on Cybercrime was opened for signature on 23 November 2001 and came into force on 1 July 2004. It is the first and only international treaty on crimes committed via the Internet and is open to all States. The Convention requires countries to establish as criminal offences the following acts: illegal access to a computer system, illegal interception of computer data, interference with data or a computer system, misuse of devices, computer-related forgery and fraud, child pornography, and the infringement of copyright and related rights. The additional protocol to the Convention on Cybercrime, adopted in 2003, further requires the criminalisation of hate speech, xenophobia and racism. The scope of the Convention ’ s procedural provisions goes beyond the offences defined in the Convention in that it applies to any offence committed by means of a computer system :",
"Article 14 – Scope of procedural provisions",
"“ 1. Each Party shall adopt such legislative and other measures as may be necessary to establish the powers and procedures provided for in this section for the purpose of specific criminal investigations or proceedings.",
"2. ... each Party shall apply the powers and procedures referred to in paragraph 1 of this Article to:",
"( a) the criminal offences established in accordance with Articles 2 through 11 of this Convention;",
"( b) other criminal offences committed by means of a computer system; and",
"( c) the collection of evidence in electronic form of a criminal offence.",
"3. ... ”",
"25. The procedural powers include the following: expedited preservation of stored data, expedited preservation and partial disclosure of traffic data, production order, search and seizure of computer data, real-time collection of traffic data and interception of content data. Of particular relevance is the power to order a service provider to submit subscriber information relating to its services; indeed, the explanatory report describes the difficulty in identifying the perpetrator as being one of the major challenges in combating crime in the networked environment:",
"Article 18 – Production order",
"“ 1. Each Party shall adopt such legislative and other measures as may be necessary to empower its competent authorities to order:",
"( a) a person in its territory to submit specified computer data in that person ’ s possession or control, which is stored in a computer system or a computer-data storage medium; and",
"( b) a service provider offering its services in the territory of the Party to submit subscriber information relating to such services in that service provider ’ s possession or control.",
"2. The powers and procedures referred to in this Article shall be subject to Articles 14 and 15.",
"3. For the purpose of this Article the term ‘ subscriber information ’ means any information contained in the form of computer data or any other form that is held by a service provider, relating to subscribers of its services, other than traffic or content data and by which can be established:",
"( a) the type of communication service used, the technical provisions taken thereto and the period of service;",
"( b) the subscriber ’ s identity, postal or geographic address, telephone and other access number, billing and payment information, available on the basis of the service agreement or arrangement;",
"( c) any other information on the site of the installation of communication equipment, available on the basis of the service agreement or arrangement. ”",
"26. The explanatory report notes that, in the course of a criminal investigation, subscriber information may be needed mainly in two situations. Firstly, to identify which services and related technical measures have been used or are being used by a subscriber, such as the type of telephone service used, the type of other associated services used ( for example, call forwarding, voicemail), or the telephone number or other technical address (for example, the e-mail address). Secondly, where a technical address is known, subscriber information is needed in order to assist in establishing the identity of the person concerned. A production order provides a less intrusive and less onerous measure which law enforcement authorities can apply instead of measures such as interception of content data and real-time collection of traffic data, which must or can be limited only to serious offences (Articles 20 and 21 of the Convention on Cybercrime ).",
"27. A global conference, “Cooperation against Cybercrime”, held in Strasbourg on 1-2 April 2008 adopted the “Guidelines for the cooperation between law enforcement and Internet service providers against cybercrime ”. The purpose of the Guidelines is to help law enforcement authorities and Internet service providers structure their interaction in relation to cybercrime issues. In order to enhance cybersecurity and minimise the use of services for illegal purposes, it was considered essential that the two parties cooperate with each other in an efficient manner. The Guidelines outline practical measures to be taken by law enforcement agencies and service providers, encouraging them to exchange information in order to strengthen their capacity to identify and combat emerging types of cybercrime. In particular, service providers are encouraged to cooperate with law enforcement agencies to help minimise the extent to which services are used for criminal activity as defined by law.",
"B. The United Nations",
"28. Out of a number of resolutions adopted in the field of cyberspace, the most pertinent for the purposes of the present case are General Assembly Resolutions 55/63 of 4 December 2000 and 56/121 of 19 December 2001 on combating the criminal misuse of information technologies. Among the measures to combat such misuse, it was recommended in Resolution 55/63 that:",
"“(f) legal systems should permit the preservation of and quick access to electronic data pertaining to particular criminal investigations;”",
"29. The subsequent Resolution took note of the value of the various measures and again invited member States to take them into account.",
"C. The European Union",
"30. On 15 March 2006 the European Parliament and the Council of the European Union adopted Directive 2006/24/EC on the retention of data generated or processed in connection with the provision of publicly available electronic communications services or of public communications networks, amending the previous data - retention Directive 2002/58/EC. The aim of the Directive is to harmonise member States ’ provisions concerning the obligations of communications providers with respect to the retention of certain data, in order to ensure that the data are available for the purpose of the investigation, detection and prosecution of serious crime, as defined by each member State in its national law. It applies to traffic and location data on both legal entities and natural persons and to the related data necessary to identify the subscriber or registered user. It does not apply to the content of electronic communications. The Directive requires member States to ensure that certain categories of data are retained for a period of between six months and two years. Article 5 specifies the data to be retained:",
"“1. Member States shall ensure that the following categories of data are retained under this Directive:",
"(a) data necessary to trace and identify the source of a communication:",
"...",
"(2) concerning Internet access, Internet e-mail and Internet telephony:",
"...",
"(iii) the name and address of the subscriber or registered user to whom an Internet Protocol (IP) address, user ID or telephone number was allocated at the time of the communication;”",
"31. Member States had until 15 September 2007 to implement the Directive. However, sixteen States, including Finland, made use of the right to postpone their application to Internet access, Internet telephony and Internet e ‑ mail until 15 March 2009.",
"IV. COMPARATIVE LAW",
"32. A comparative review of the national legislation of the member States of the Council of Europe shows that in most countries there is a specific obligation on the part of telecommunications service providers to submit computer data, including subscriber information, in response to a request by the investigating or judicial authorities, regardless of the nature of a crime. Some countries have only general provisions on the production of documents and other data, which could in practice be extended to cover also the obligation to submit specified computer and subscriber data. Several countries have not yet implemented the provisions of Article 18 of the Council of Europe Convention on Cybercrime.",
"THE LAW",
"I. ALLEGED VIOLATIONS OF ARTICLES 8 AND 13 OF THE CONVENTION",
"35. The applicant complained under Article 8 of the Convention that an invasion of his private life had taken place and that no effective remedy existed to reveal the identity of the person who had put a defamatory advertisement on the Internet in his name, contrary to Article 13 of the Convention.",
"Article 8 provides:",
"“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.”",
"Article 13 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.”",
"A. The parties ’ submissions",
"36. The applicant submitted that Finnish legislation at the time protected the criminal, whereas the victim had no means to obtain redress or protection against a breach of privacy. Under the Penal Code the impugned act was punishable, but the Government had neglected to ensure that the Protection of Privacy and Data Security in Telecommunications Act and the Coercive Measures Act were consistent with each other. He argued that the random possibility of seeking civil damages, particularly from a third party, was not sufficient to protect his rights. He emphasised that he did not have the means to identify the person who had placed the advertisement on the Internet. While compensation might in some cases be an effective remedy, this depended on whether it was paid by the person who had infringed the victim ’ s rights, which was not the case in his application. According to the Government, new legislation was in place which, had it existed at the time of the events, would have rendered this complaint unnecessary. In the applicant ’ s view, the Government had not provided any justification for the failure to afford him this protection at the material time. He considered, therefore, that there had been breaches of Articles 8 and 13 of the Convention.",
"37. The Government emphasised that in the present case the interference with the applicant ’ s private life had been committed by another individual. The impugned act was considered in domestic law as an act of malicious misrepresentation and would have been punishable as such, which had a deterrent effect. An investigation had been initiated to identify the person who had placed the advertisement on the Internet, but had proved unsuccessful due to the legislation in force at the time, which aimed to protect freedom of expression and the right to anonymous expression. The legislation protected the publisher of an anonymous Internet message so extensively that the protection also covered messages that possibly interfered with another person ’ s privacy. This side - effect of the protection was due to the fact that the concept of a message interfering with the protection of privacy was not clear cut, and therefore it had not been possible to clearly exclude such messages from the protection provided by law. There were, however, other avenues of redress available, for example the Personal Data Act, which provided protection against malicious misrepresentation in that the operator of the Internet server, on the basis of that Act ’ s provisions on criminal liability and liability in damages, was obliged to ensure that sensitive data recorded by it were processed with the consent of the data subject. Furthermore, although the personal data offence had become time-barred, the applicant still had the possibility of seeking compensation from the publisher of the advertisement. By comparison with the X and Y v. the Netherlands case ( 26 March 1985, Series A no. 91 ), in the present case liability in damages in the context of a less serious offence provided a sufficient deterrent effect. In addition, there were other mechanisms available to the applicant, such as a pre-trial police investigation, prosecution, court proceedings and damages.",
"38. The Government submitted that it was important to look at the legislative situation at the material time in its social context, when a rapid increase in the use of the Internet was just beginning. The current legislation, the Exercise of Freedom of Expression in Mass Media Act (sections 2 and 17), which took effect on 1 January 2004, gives the police more extensive powers to break the protection of the publisher of an anonymous Internet message for the purposes of criminal investigations. The new legislation reflects the legislator ’ s reaction to social development where increased use – and at the same time abuse – of the Internet has required a redefinition of the limits of protection. Thus, because of a changed situation in society, subsequent legislation has further strengthened the protection of private life in respect of freedom of expression, and especially the protection of the publishers of anonymous Internet messages.",
"39. However, most essential in the present case was that even the legislation in force at the material time provided the applicant with means of action against the distribution of messages invading his privacy, in that the operator of the Internet server on which the message was published was obliged by law to verify that the person in question had consented to the processing of sensitive information concerning him or her on the operator ’ s server. This obligation was bolstered by criminal liability and liability in damages. Thus, the legislation provided the applicant with sufficient protection of privacy and effective legal remedies.",
"B. The Court ’ s assessment",
"40. The Court notes at the outset that the applicant, a minor of 12 years at the time, was the subject of an advertisement of a sexual nature on an Internet dating site. The identity of the person who had placed the advertisement could not, however, be obtained from the Internet service provider due to the legislation in place at the time.",
"41. There is no dispute as to the applicability of Article 8: the facts underlying the application concern a matter of “ private life ”, a concept which covers the physical and moral integrity of the person ( see X and Y v. the Netherlands, cited above, § 22). Although this case is seen in domestic law terms as one of malicious misrepresentation, the Court would prefer to highlight these particular aspects of the notion of private life, having regard to the potential threat to the applicant ’ s physical and mental welfare brought about by the impugned situation and to his vulnerability in view of his young age.",
"42. The Court reiterates that, although the object of Article 8 is essentially to protect the individual against arbitrary interference by the public authorities, it does not merely compel the State to abstain from such interference: in addition to this primarily negative undertaking, there may be positive obligations inherent in an effective respect for private or family life (see Airey v. Ireland, 9 October 1979, § 32, Series A no. 32 ).",
"43. These obligations may involve the adoption of measures designed to secure respect for private life even in the sphere of the relations of individuals between themselves. There are different ways of ensuring respect for private life and the nature of the State ’ s obligation will depend on the particular aspect of private life that is at issue. While the choice of the means to secure compliance with Article 8 in the sphere of protection against acts of individuals is, in principle, within the State ’ s margin of appreciation, effective deterrence against grave acts, where fundamental values and essential aspects of private life are at stake, requires efficient criminal-law provisions ( see X and Y v. the Netherlands, cited above, §§ 23 ‑ 24 and 27; August v. the United Kingdom ( dec. ), no. 36505/02, 21 January 2003; and M.C. v. Bulgaria, no. 39272/98, § 150, ECHR 2003 ‑ XII ).",
"44. The limits of the national authorities ’ margin of appreciation are nonetheless circumscribed by the Convention provisions. In interpreting them, since the Convention is first and foremost a system for the protection of human rights, the Court must have regard to the changing conditions within Contracting States and respond, for example, to any evolving convergence as to the standards to be achieved (see Christine Goodwin v. the United Kingdom [GC], no. 28957/95, § 74, ECHR 2002-VI).",
"45. The Court considers that, while this case might not attain the seriousness of X and Y v. the Netherlands, where a breach of Article 8 arose from the lack of an effective criminal sanction for the rape of a girl with disabilities, it cannot be treated as trivial. The act was criminal, involved a minor and made him a target for approaches by paedophiles (see, also, paragraph 41 above in this connection).",
"46. The Government conceded that, at the time, the operator of the Internet server could not be ordered to provide information identifying the offender. They argued that protection was provided by the mere existence of the criminal offence of malicious misrepresentation and by the possibility of bringing criminal charges or an action for damages against the server operator. As to the former, the Court notes that the existence of an offence has limited deterrent effects if there is no means to identify the actual offender and to bring him to justice. Here, the Court notes that it has not excluded the possibility that the State ’ s positive obligations under Article 8 to safeguard the individual ’ s physical or moral integrity may extend to questions relating to the effectiveness of a criminal investigation even where the criminal liability of agents of the State is not at issue (see Osman v. the United Kingdom, 28 October 1998, § 128, Reports of Judgments and Decisions 1998-VIII). For the Court, States have a positive obligation inherent in Article 8 of the Convention to criminalise offences against the person, including attempted offences, and to reinforce the deterrent effect of criminalisation by applying criminal ‑ law provisions in practice through effective investigation and prosecution (see, mutatis mutandis, M.C. v. Bulgaria, cited above, § 153). Where the physical and moral welfare of a child is threatened, such injunction assumes even greater importance. The Court notes in this connection that sexual abuse is unquestionably an abhorrent type of wrongdoing, with debilitating effects on its victims. Children and other vulnerable individuals are entitled to State protection, in the form of effective deterrence, from such grave types of interference with essential aspects of their private lives (see Stubbings and Others v. the United Kingdom, 22 October 1996, § 64, Reports 1996 ‑ IV ).",
"47. As to the Government ’ s argument that the applicant had the possibility to obtain damages from a third party, namely the service provider, the Court considers that it was not sufficient in the circumstances of this case. It is plain that both the public interest and the protection of the interests of victims of crimes committed against their physical or psychological well-being require the availability of a remedy enabling the actual offender to be identified and brought to justice, in the instant case the person who placed the advertisement in the applicant ’ s name, and the victim to obtain financial reparation from him.",
"48. The Court accepts that, in view of the difficulties involved in policing modern societies, a positive obligation must be interpreted in a way which does not impose an impossible or disproportionate burden on the authorities or, as in this case, the legislator. Another relevant consideration is the need to ensure that powers to control, prevent and investigate crime are exercised in a manner which fully respects the due process and other guarantees which legitimately place restraints on criminal investigations and bringing offenders to justice, including the guarantees contained in Articles 8 and 10 of the Convention, guarantees which offenders themselves can rely on. The Court is sensitive to the Government ’ s argument that any legislative shortcoming should be seen in its social context at the time. The Court notes at the same time that the relevant incident took place in 1999, that is, at a time when it was well-known that the Internet, precisely because of its anonymous character, could be used for criminal purposes (see paragraphs 22 and 24 above). Also, the widespread problem of child sexual abuse had become well known over the preceding decade. Therefore, it cannot be said that the respondent Government did not have the opportunity to put in place a system to protect child victims from being exposed as targets for paedophiliac approaches via the Internet.",
"49. The Court considers that practical and effective protection of the applicant required that effective steps be taken to identify and prosecute the perpetrator, that is, the person who placed the advertisement. In the instant case, such protection was not afforded. An effective investigation could never be launched because of an overriding requirement of confidentiality. Although freedom of expression and confidentiality of communications are primary considerations and users of telecommunications and Internet services must have a guarantee that their own privacy and freedom of expression will be respected, such guarantee cannot be absolute and must yield on occasion to other legitimate imperatives, such as the prevention of disorder or crime or the protection of the rights and freedoms of others. Without prejudice to the question whether the conduct of the person who placed the offending advertisement on the Internet can attract the protection of Articles 8 and 10, having regard to its reprehensible nature, it is nonetheless the task of the legislator to provide the framework for reconciling the various claims which compete for protection in this context. Such framework was not, however, in place at the material time, with the result that Finland ’ s positive obligation with respect to the applicant could not be discharged. This deficiency was later addressed. However, the mechanisms introduced by the Exercise of Freedom of Expression in Mass Media Act (see paragraph 21 above) came too late for the applicant.",
"50. The Court finds that there has been a violation of Article 8 of the Convention in the present case.",
"51. Having regard to the finding relating to Article 8, the Court considers that it is not necessary to examine whether, in this case, there has also been a violation of Article 13 of the Convention (see, among other authorities, Sallinen and Others v. Finland, no. 5 0882/99, § § 102 and 110, 27 September 2005, and Copland v. the United Kingdom, no. 62617/00, §§ 50-51, ECHR 2007 ‑ I ).",
"II. APPLICATION OF ARTICLE 41 OF THE CONVENTION",
"52. 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",
"53. Under the head of non-pecuniary damage, the applicant claimed 3, 5 00 euros (EUR) for suffering.",
"54. The Government submitted that the award should not exceed EUR 2,500.",
"55. The Court finds it established that the applicant must have suffered non-pecuniary damage. It considers that sufficient just satisfaction would not be provided solely by the finding of a violation and that compensation has thus to be awarded. Deciding on an equitable basis, it awards the applicant EUR 3,000 under this head.",
"B. Costs and expenses",
"56. The applicant claimed EUR 2,500 for costs incurred during the national proceedings and the proceedings before the Court.",
"57. The Government questioned whether the applicant had furnished the requisite documentation.",
"58. The Court notes that no documentation as required by Rule 60 of the Rules of Court has been submitted. These claims must therefore be rejected.",
"C. Default interest",
"59. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points."
] |
technology_data
|
165
|
K.H. and Others v. Slovakia
|
28 April 2009
|
The applicants, eight women of Roma origin, could not conceive any longer after being treated at gynaecological departments in two different hospitals, and suspected that it was because they had been sterilised during their stay in those hospitals. They complained that they could not obtain photocopies of their medical records.
|
The Court held that there had been a violation of Article 8 (right to private and family life) of the Convention in that the applicants had not been allowed to photocopy their medical records. It found that, although subsequent legislative changes compatible with the Convention had been introduced, that had happened too late for the applicants.
|
Health
|
Access to personal medical records
|
[
"I. THE CIRCUMSTANCES OF THE CASE",
"6. The applicants are eight female Slovakian nationals of Roma ethnic origin.",
"A. Background to the case",
"7. 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.",
"8. 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.",
"9. 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.",
"10. 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",
"11. 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.",
"13. 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.",
"14. 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.",
"15. 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",
"16. H.M. and V. Ž., 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.",
"17. 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.",
"18. 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.",
"19. 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",
"20. 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.",
"21. 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.",
"22. 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.",
"23. 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",
"24. 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.",
"25. 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",
"26. 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.",
"27. 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.",
"III. RECOMMENDATION OF THE COMMITTEE OF MINISTERS OF THE COUNCIL OF EUROPE No. R (97) 5 ON THE PROTECTION OF MEDICAL DATA",
"36. 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; ... ”"
] |
[
"II. RELEVANT DOMESTIC LAW",
"A. Code of Civil Procedure",
"28. Article 3 guarantees to everyone the right to seek judicial protection of a right which has been placed in jeopardy or violated.",
"29. 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.",
"30. 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.",
"31. 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.",
"32. 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",
"33. 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.”",
"34. 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",
"35. Law no. 576/2004 on health care and health care services and on the amendment and completion of certain Acts ( Zákon o zdravotnej starostlivosti, službách 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.”",
"THE LAW",
"I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION",
"37. 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",
"38. 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.",
"39. 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.",
"40. 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",
"41. 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.",
"42. 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.",
"43. 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",
"44. 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).",
"45. 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 ).",
"46. 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 ).",
"47. 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.",
"48. 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.",
"49. 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.",
"50. 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.",
"51. 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 2 7 above).",
"52. 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.",
"53. 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.",
"54. 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.",
"55. 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 ).",
"56. 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).",
"57. 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.",
"58. 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",
"59. 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 ...”",
"60. 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.",
"61. 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.",
"62. 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.",
"63. 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.",
"64. 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).",
"65. 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.",
"66. 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.",
"67. 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.",
"68. 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.",
"69. There has therefore been a violation of Article 6 § 1 of the Convention.",
"III. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION",
"70. 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.”",
"71. 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",
"72. 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",
"73. 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",
"74. 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",
"75. 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.",
"76. The Government considered that claim to be excessive.",
"77. 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, 5 00 in respect of non-pecuniary damage.",
"B. Costs and expenses",
"78. 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.",
"79. 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.",
"80. 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).",
"81. 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",
"82. 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."
] |
health_life
|
166
|
K.H. and Others v. Slovakia
|
28 April 2009
|
The applicants, eight women of Roma origin, could not conceive any longer after being treated at gynaecological departments in two different hospitals, and suspected that it was because they had been sterilised during their stay in those hospitals. They complained that they could not obtain photocopies of their medical records.
|
The Court held that there had been a violation of Article 8 of the Convention in that the applicants had not been allowed to photocopy their medical records. It considered in particular that persons who, like the applicants, wished to obtain photocopies of documents containing their personal data, should not have been obliged to make specific justification as to why they needed the copies. It should have been rather for the authority in possession of the data to show that there had been compelling reasons for not providing that facility. Given that the applicants had obtained judicial orders permitting them to consult their medical records in their entirety, having denied them the possibility to make photocopies of those records had not been sufficiently justified by the authorities. To avoid the risk of abuse of medical data it would have been sufficient to put in place legislative safeguards with a view to strictly limiting the circumstances under which such data could be disclosed, as well as the scope of persons entitled to have access to the files. The Court observed that the new Health Care Act adopted in 2004 had been compatible with that requirement, however, it had come into play too late to affect the situation of the applicants in this case.
|
Personal data protection
|
Access to personal data
|
[
"I. THE CIRCUMSTANCES OF THE CASE",
"6. The applicants are eight female Slovakian nationals of Roma ethnic origin.",
"A. Background to the case",
"7. 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.",
"8. 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.",
"9. 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.",
"10. 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",
"11. 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.",
"13. 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.",
"14. 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.",
"15. 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",
"16. H.M. and V. Ž., 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.",
"17. 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.",
"18. 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.",
"19. 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",
"20. 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.",
"21. 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.",
"22. 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.",
"23. 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",
"24. 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.",
"25. 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",
"26. 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.",
"27. 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.",
"III. RECOMMENDATION OF THE COMMITTEE OF MINISTERS OF THE COUNCIL OF EUROPE No. R (97) 5 ON THE PROTECTION OF MEDICAL DATA",
"36. 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; ... ”"
] |
[
"II. RELEVANT DOMESTIC LAW",
"A. Code of Civil Procedure",
"28. Article 3 guarantees to everyone the right to seek judicial protection of a right which has been placed in jeopardy or violated.",
"29. 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.",
"30. 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.",
"31. 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.",
"32. 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",
"33. 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.”",
"34. 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",
"35. Law no. 576/2004 on health care and health care services and on the amendment and completion of certain Acts ( Zákon o zdravotnej starostlivosti, službách 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.”",
"THE LAW",
"I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION",
"37. 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",
"38. 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.",
"39. 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.",
"40. 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",
"41. 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.",
"42. 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.",
"43. 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",
"44. 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).",
"45. 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 ).",
"46. 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 ).",
"47. 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.",
"48. 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.",
"49. 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.",
"50. 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.",
"51. 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 2 7 above).",
"52. 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.",
"53. 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.",
"54. 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.",
"55. 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 ).",
"56. 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).",
"57. 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.",
"58. 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",
"59. 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 ...”",
"60. 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.",
"61. 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.",
"62. 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.",
"63. 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.",
"64. 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).",
"65. 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.",
"66. 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.",
"67. 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.",
"68. 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.",
"69. There has therefore been a violation of Article 6 § 1 of the Convention.",
"III. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION",
"70. 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.”",
"71. 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",
"72. 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",
"73. 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",
"74. 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",
"75. 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.",
"76. The Government considered that claim to be excessive.",
"77. 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, 5 00 in respect of non-pecuniary damage.",
"B. Costs and expenses",
"78. 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.",
"79. 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.",
"80. 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).",
"81. 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",
"82. 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."
] |
technology_data
|
189
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Volodina v. Russia
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14 September 2021
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This case concerned the applicant’s allegation that the Russian authorities had failed to protect her against repeated acts of cyberharassment. She submitted, in particular, that her former partner had used her name, personal details and intimate photographs to create fake social media profiles, that he had planted a GPS tracker in her handbag, that he had sent her death threats via social media; and that the authorities had failed to effectively investigate these allegations.
|
The Court held that there had been a violation of Article 8 (right to respect for private life) of the Convention, finding that the Russian authorities had failed to comply with their obligations under that provision to protect the applicant from severe abuse. It noted, in particular, that, despite having the legal tools available to prosecute the applicant’s partner, the authorities had not carried out an effective investigation and had not considered at any point in time what could and should have been done to protect the applicant from recurrent online harassment.
|
New technologies
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Online harassment
|
[
"2. The applicant is Ms Valeriya Igorevna Volodina; she is a Russian national who was born in 1985 and lives in an undisclosed location in Russia. In 2018, fearing for her safety, she obtained a legal change of name (see Volodina v. Russia, no. 41261/17, § 39, 9 July 2019). Her old name is used in the judgment to protect her safety. The applicant was represented before the Court by Ms Vanessa Kogan, director of the Stichting Justice Initiative, a human-rights organisation based in Utrecht, the Netherlands.",
"3. The Government were initially represented by Mr M. Galperin, former Representative of the Russian Federation to the European Court of Human Rights, and later by his successor in this office, Mr M. Vinogradov.",
"4. The facts of the case, as submitted by the parties, may be summarised as follows.",
"Circumstances of the case",
"5. In November 2014 the applicant began a relationship with Mr S., an Azerbaijani national. After their separation in 2015, S. threatened her with death or bodily injuries; he abducted and assaulted her on several occasions. For details, see Volodina, cited above, §§ 10-36.",
"6. In June 2016 the applicant’s brother told her that her account on the Russian social media platform VKontakte had been hacked. Her invented name had been replaced with the real name; her personal details, a photograph of her passport and her intimate photographs had been uploaded to the account. Classmates of her twelve ‑ year-old son and his class teacher had been added as friends. The applicant attempted to log into her account only to discover that the password had been changed.",
"7. On 22 June 2016 the applicant complained to the Ulyanovsk police about a breach of her right to privacy. The police took a statement from the applicant’s brother. He said that he had talked to S. on the phone and that S. had admitted that he had hacked into the applicant’s email account and sent obscene messages to her contacts. He had done so out of desperation because he had “no good way of bringing [her] back”. Claiming that they were unable to locate S. in their jurisdiction, on 21 July 2016 the Ulyanovsk police forwarded the matter to the police in the Krasnodar Region where S. had registered his residence. On 29 August 2016 the Krasnodar police sent the file on to the Samara Region where S. had moved. On 30 September 2016 the Samara police returned the case file to their colleagues in Ulyanovsk.",
"8. On 7 November 2016 the Ulyanovsk police declined to institute criminal proceedings on the grounds that the information had been made public on social media rather than in the media. The supervising prosecutor set that decision aside as unlawful because S. had not been interviewed. On 2 May 2017 the police again declined to open a criminal case, finding no indication that S. had collected or disseminated information about the applicant’s private life. The decision stated that it had not been possible to locate S. who had no Russian nationality or proof of residence in Russia. On 1 February 2018 the supervising prosecutor annulled that decision. He directed the police to locate and interview S., to examine his electronic devices and records of his phone calls to the applicant.",
"9. On 6 March 2018 the Ulyanovsk police opened a criminal investigation under Article 137 of the Criminal Code. Over the following months, police investigators interviewed the applicant and S., first separately and later face ‑ to-face, took statements from the applicant’s family members, seized and examined their mobile phones, obtained logs of phone communications from mobile providers, received information from the company operating the VKontakte site, and talked to a social media expert.",
"10. In February, March and September 2018, new fake profiles in the applicant’s name appeared on VKontakte and Instagram. The profiles used her intimate photographs and personal details.",
"11. On 13 August and 19 September 2018 the applicant complained to the Ulyanovsk police that S. had sent her death threats via social media and Internet messengers. She enclosed printouts of messages and asked the police to open a criminal case under Article 119 of the Criminal Code (threats of death or bodily injury) and to grant her protection. On 3 January 2019 the police refused to open a criminal case on the grounds that the threats had not been “real”.",
"12. Following the creation of court orders prohibiting certain forms of conduct (see paragraph 32 below), on 28 September 2018 the applicant asked the investigator to seek an order which would prevent S. from using the Internet, contacting her by any means including via social media, e-mail or Internet messengers, or approaching her or members of her family. On 18 October 2018 the investigator replied that, on account of his independent standing in the proceedings, the parties could not dictate him what action needed to be taken. He refused her request on the grounds that “measures of restraint could be applied to suspects in exceptional circumstances only”. By judgment of 27 November 2018, as upheld on appeal on 21 January 2019, the Ulyanovsk courts dismissed the applicant’s complaint about the investigator’s decision on the grounds that it had been issued by a competent official within his scope of discretion.",
"13. On 12 December 2018 the applicant complained to the Kuntsevskiy District Court in Moscow that the Kuntsevskiy district police had not responded in any way to her report of a tracking device she had found in her bag two years previously (see Volodina, cited above, §§ 28-29). On 26 December 2018 the District Court found no fault with the actions of the district police because the deputy chief had forwarded the applicant’s report to the Special Technical Measures Bureau shortly upon its receipt. On 28 February 2019 the Moscow City Court dismissed, in a summary fashion, her appeal against the District Court’s decision.",
"14. On 19 January 2019 the Ulyanovsk police suspended the investigation into the fake social media profiles. They established that two fake profiles had been created in February and March 2018 using IP addresses and phone numbers registered in Azerbaijan. According to the billing information of his phones and the police database, on critical dates S. had been in the Tambov Region in Russia. The investigators decided to ask their Azerbaijani counterparts to obtain records of phone communications from the Azerbaijani number.",
"15. Counsel for the applicant applied for judicial review of the investigators’ decisions. She complained that the criminal case had been opened following a two-year period of inactivity after the first report, that the fake profiles created in 2016 had not been investigated, that S.’s friends and connections had not been identified or interviewed, that communications between S. and the phone number in Azerbaijan had not been evaluated, and that the collected evidence had not been made available to the applicant.",
"16. On 25 June 2019 the Zavolzhskiy District Court in Ulyanovsk set aside the 19 January 2019 suspension decision as unlawful and premature in so far as it did not fix a time-limit for receiving a reply from Azerbaijan and as it prevented the applicant from requesting the investigator to follow the leads which she believed needed to be explored. On 19 August 2019 the Ulyanovsk Regional Court quashed the District Court’s decision in respect of the applicant’s complaints which had been granted. It held that the law did not require the investigator to make the case file available to the applicant until the investigation had been completed, and that the suspension decision had been lawful because “the investigator had ... given due consideration to all the circumstances” underlying that decision.",
"17. On 14 September 2019 the Kuntsevskiy district police in Moscow refused to open a criminal investigation into the tracking device. The decision listed the constituent elements of an offence under Article 137 of the Criminal Code and stated that the device had been identified as a Russian ‑ made GPS tracker which was legally available for purchase. As the applicant had thrown away the device and the SIM card it contained, it was impossible to identify the owner. Her claim that “no one but [S.] could have planted the device” was speculation which could not be accepted as evidence. As there was no “objective evidence incriminating [S.]”, the criminal case against him could not continue.",
"18. On 20 October 2019 the owner of the telephone number registered in Azerbaijan which had been used for the fake social media accounts was established and questioned. The applicant was not informed of this development. Nor was it mentioned in the investigator’s subsequent decision of 25 December 2019 to suspend the criminal proceedings due to the failure to identify the perpetrator.",
"19. On 18 May 2020 the applicant was questioned about the fake profiles which had appeared in 2018 on Instagram and VKontakte. The investigator asked the applicant if she knew certain named individuals in Azerbaijan and whether she would accept a polygraph test. She said she did not know these people and refused the test.",
"20. On 14 October 2020 the Ulyanovsk police closed the criminal case under Article 137 of the Criminal Code. According to the decision, it was established that in February and March 2018 S. had created fake profiles on VKontakte in the applicant’s name and had published nude photos of her without her consent. The published photos had been found on his phone during an inspection. On 13 October 2020 S. had filed a motion to discontinue the proceedings because the limitation period had expired. The motion had been granted: as the offence under Article 137 was of lesser gravity, the two ‑ year period of limitation had expired in March 2020.",
"21. The decision was not communicated to the applicant or her lawyer. On 14 April 2021 she became aware of its existence from the Government’s Action Plan submitted to the Committee of Ministers in the framework of execution of the Volodina group of cases."
] |
[
"RELEVANT LEGAL FRAMEWORK",
"United nations",
"22. The 2015 report by the UNESCO-ITU Broadband Commission for Digital Development’s Working group on Broadband and Gender, “Cyberviolence against Women and Girls: A World-wide Wake-up Call” [1], observes that “violence online and offline, or ‘physical’ violence against women and girls (VAWG) and ‘cyber’ VAWG, feed into each other” and that “abuse may be confined to networked technologies or may be supplemented with offline harassment including vandalism, phone calls and physical assault”.",
"Forms of cyber VAWG fall into six broad categories which include “hacking”, “impersonation” (the use of technology to assume the identity of the victim in order to embarrass or shame her, e.g., by sending offensive emails from the victim’s email account), “surveillance/tracking” (stalking and monitoring a victim’s activities either in real-time or historically; e.g., GPS tracking), “harassment/spamming” (the use of technology to continuously contact, annoy, threaten, and/or scare the victim), “recruitment” (luring potential victims into violent situations), and “malicious distribution” (manipulating and distributing defamatory and illegal materials related to the victim; e.g., threatening to or leaking intimate photos/video). In addition, some terminology is particular to cyber VAWG: thus, “revenge porn” consists of an individual posting intimate photographs of another individual online with the aim of publicly shaming and humiliating that person, and even inflicting real damage on the target’s “real-world” life, such as getting them fired from their job.",
"Five characteristics that distinguish cyber VAWG are: “anonymity” (abusive person can remain unknown to victim), “action at a distance” (abuse can be done without physical contact and from anywhere), “automation” (abusive actions using technologies require less time and effort), “accessibility” (variety and affordability of many technologies make them readily accessible to perpetrators), and “propagation and perpetuity” (texts and images multiply and exist for a long time or indefinitely).",
"23. A report by the UN Human Rights Council’s Special Rapporteur on violence against women, its causes and consequences, on online violence against women and girls from a human rights perspective (A/HRC/38/47, 18 June 2018) has found that online and internet-facilitated forms of violence against women have become increasingly common, particularly with the use of social media platforms and other technical applications (point 12). Technology has transformed many forms of gender-based violence into something that can be perpetrated across distance, without physical contact and beyond borders. All forms of online gender-based violence are used to control and attack women and to maintain and reinforce patriarchal norms, roles and structures and an unequal power relationship (point 30).",
"Online violence against women may be manifested in different forms and through different means, such as non-consensual accessing, using, manipulating, disseminating or sharing of private data, photographs or videos, including sexualized images (point 34). New among other forms of violence, “revenge porn” consists in the non-consensual online dissemination of intimate images, obtained with or without consent, with the purpose of shaming, stigmatising or harming the victim (points 33 and 41).",
"The Special Rapporteur formulated a number of recommendations for States, including the recommendations that States should clearly prohibit and criminalise online violence against women, in particular the non-consensual distribution of intimate images and the threat to disseminate such images (point 101), and that States should allow victims to obtain protection orders to prevent their abusers from posting or sharing intimate images without their consent (point 104).",
"Council of Europe",
"24. The Cybercrime Convention Committee’s Working Group on cyberbullying and other forms of online violence, especially against women and children, carried out a mapping study on cyberviolence [2] and released its findings on 9 July 2018. The Working Group agreed to define “cyberviolence” as “the use of computer systems to cause, facilitate, or threaten violence against individuals that results in, or is likely to result in, physical, sexual, psychological or economic harm or suffering and may include the exploitation of the individual’s circumstances, characteristics or vulnerabilities” (point 2.1.1). Acts of cyberviolence may take a variety of forms ranging from ICT-related violations of privacy, such as stalking, identity theft and impersonation, to cyber-harassment which comprises “revenge porn”, to cybercrime (point 2.1.2). With regard to “revenge porn”, the study observed that “the phenomenon predominantly involves a partner in an intimate relationship disseminating the material in order to humiliate or intimidate the victim” and has been recognised as a crime in several jurisdictions (point 2.1.2.1.2).",
"Investigation and prosecution of cyberviolence was confronted with many challenges, including limited help by law enforcement: “Cyberviolence may involve methods that are particularly difficult for police forces to investigate, and victims may be told – correctly or incorrectly – that there is nothing that law enforcement can do. Like any other form of violence against women, online violence against women is often overlooked because of a lack of awareness and gendered understanding of violence. Victims’ experience are often considered as ‘incidents’ rather than patterns of behaviour, and victims are blamed for the violence they face” (point 2.3).",
"RussiaProtection of private life: civil law",
"Protection of private life: civil law",
"Protection of private life: civil law",
"25. The concept of “private life” embraces “the sphere of human life and activity which belongs to the particular person, exclusively concerns that person and is not subject to public or State control so long as it is not contrary to law” (Constitutional Court’s decisions no. 248-O of 9 June 2005, no. 158 ‑ O-O of 26 January 2010, and no. 1253-O of 28 June 2012).",
"26. Article 150 of the Civil Code (“Intangible assets”) stipulates that a person’s dignity, honour, goodwill, business reputation, private life and family secrets constitute inalienable intangible assets. A court may recognise an infringement of the person’s intangible assets and prevent actions that infringe or threaten to infringe them.",
"27. Article 151 (“Compensation for non-pecuniary damage”) provides that a person who infringes another’s intangible assets may be ordered by a court to pay financial compensation in respect of non-pecuniary damage.",
"28. Article 152.1 (“Protection of a person’s image”) establishes that a person’s image may only be published or used with the consent of the person concerned. If an image is shared on the Internet without consent, the person may demand that it be removed and no longer used.",
"29. Article 152.2 (“Protection of a person’s private life”) prohibits the collection, storage, dissemination and use of information about a person’s private life, including his or her origins, place of stay or residence, private or family life, without the consent of the person concerned.",
"Protection of private life: criminal law",
"30. Article 137 of the Criminal Code (“Breach of privacy”) establishes that illegal collection or dissemination of information on the person’s private life constituting his or her personal or family secrets, without the consent of the person concerned, or else dissemination of such information in public speech, in a work of art on public display or in the mass media, is an offence punishable by a fine or up to two years’ imprisonment.",
"31. The Plenary Supreme Court of Russia’s guidance on the judicial application of criminal-law provisions for the protection of constitutional rights and freedoms (Resolution no. 46 of 25 December 2018) indicates that, for the purposes of Article 137 of the Criminal Code, the collection of information on the person’s private life must be understood as comprising the illegal obtaining of information by any means, such as surveillance, wiretapping, interviewing other persons, including with the use of audio, video and photorecording equipment, and copying, stealing or otherwise acquiring documents. Dissemination of information on the person’s private life consists in communicating or disclosing it to one or more persons orally, in writing or otherwise, including by means of handing over the materials or publishing the information on ICT networks, such as the Internet.",
"Criminal procedure",
"32. In April 2018, a new measure of restraint in criminal proceedings in the form of a court order prohibiting certain conduct ( запрет определенных действий ) was introduced in Article 105.1 of the Code of Criminal Procedure. The court may, on an application from the investigator in charge of the case, issue an order requiring a suspect or defendant in criminal proceedings to appear when summoned, to abstain from certain conduct and to comply with the restrictions imposed (part 1). An exhaustive list of types of conduct which may be restricted includes a prohibition to leave the place of residence, a prohibition to visit or approach certain places or to attend certain events, a prohibition to communicate with certain persons, and a prohibition to receive or send letters, to use means of communication or the Internet (part 6).",
"THE LAW",
"ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION",
"33. The applicant complained under Article 8 of the Convention that the Russian authorities had failed to protect her against repeated acts of online violence and to investigate the matter diligently and efficiently. Article 8 reads as follows:",
"“1. Everyone has the right to respect for his private ... 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.”",
"AdmissibilityExhaustion of domestic remedies",
"Exhaustion of domestic remedies",
"Exhaustion of domestic remedies",
"34. The Government submitted that the applicant did not avail herself of civil-law remedies which clearly had a prospect of success. She could have introduced a civil claim under Articles 150-151.2 of the Civil Code to have her photos and fake profiles removed, to prevent their further use and to be granted compensation for non-pecuniary damage. The Government supported their position with the reference to a judicial decision (Krasnogorskiy District Court in Kamensk-Uralsk, 13 March 2017, as upheld on appeal by the Sverdlovskiy Regional Court) by which a plaintiff’s former partner was ordered to pay her compensation for the unlawful use of her intimate photos. He had shown the photos, which he had taken during the time they cohabited, to her current partner and her mother-in-law. The courts had taken evidence from witnesses and established the facts according to the civil standard of proof. They had found that in civil proceedings, the courts were not bound by the police’s decision declining to institute a criminal investigation on the plaintiff’s report. In civil proceedings, the perpetrator did not benefit from the presumption of innocence, and the burden of proof was placed equally on both parties in relation to the circumstances they asserted.",
"35. The applicant disagreed that civil-law remedies offered a sufficient chance of success in the circumstances of her case. She did not need to seek a court order to have the photos removed, as the social media platforms had taken down the fake profiles as soon as she had reported them. Pursuing a civil claim to prevent a further use of her photos and obtain damages would have required her to adduce evidence showing that S. had been responsible for creating the fake profiles or used the services of someone who had done so. She could not have collected that evidence in a situation where the investigative authorities with all necessary powers, including access to phone registers, IP addresses, geolocation data, and cross-border cooperation, had not managed to establish the person responsible for creating the fake profiles and publishing her photos. The Kamensk-Uralsk case to which the Government referred did not involve cyberviolence. The defendant had personally visited the plaintiff’s partner and mother-in-law to show them the photos; he did not deny he had done so in order to defame her; her partner and mother-in-law had witnessed his actions. In contrast, the offence in the applicant’s case had taken place in cyberspace which offers the perpetrator anonymity and the opportunity to cause harm across borders. Finally, unlike the Kamensk-Uralsk case where police had refused to open a criminal case, in the applicant’s case, the criminal case had been opened, giving her reason to believe that a separate civil action would be redundant as she would be able to claim damages in criminal proceedings.",
"36. The Court notes that the applicant reported the fake social-media profiles and the discovery of a tracking device in her bag to the police (see paragraphs 7 and 10 above, and Volodina v. Russia, no. 41261/17, § 29, 9 July 2019). After an initial period of prevarication, the police accepted to open a criminal case under Article 137 of the Criminal Code, to which the decision on her report of the tracking device also referred (see paragraphs 9 and 17 above). It was not claimed that the acts which she complained about fell out of the scope of that provision. She could therefore legitimately expect that, once seized of the matter, the investigative authorities would pursue the investigation, identify the person responsible and bring the case to trial which would have enabled her to constitute a civil party and claim damages from the perpetrator. Accordingly, the Court finds that the applicant made use of a remedy available to her under domestic law which was apparently effective and offered reasonable prospects of success. Indeed, the Government did not claim that complaining to the police about these matters was not an effective remedy. As to their argument that she should have also instituted civil proceedings, the Court reiterates that, even assuming that a civil-law remedy could have been an effective one, an applicant who has pursued an apparently effective remedy cannot be required also to have tried others that were available but probably no more likely to be successful (see Nicolae Virgiliu Tănase v. Romania [GC], no. 41720/13, § 177, 25 June 2019, and, in a factually similar situation, Buturugă v. Romania, no. 56867/15, § 73, 11 February 2020). It follows that the Government’s objection as to the alleged non-exhaustion of domestic remedies must be rejected.",
"“Substantially the same”",
"37. The Government submitted that the complaint about the applicant’s alleged stalking with the use of a tracking device had already been examined by the Court in the applicant’s first case (they referred to Volodina, cited above, §§ 28-29).",
"38. The applicant replied that, although the tracking device was indeed mentioned in the statement of facts of the first judgment, her complaints relating to ineffective investigation and judicial review had not yet been subject to the Court’s examination.",
"39. The Court has identified the following criteria concerning Article 35 § 2 (b) of the Convention by which an application may be declared inadmissible if it “is substantially the same as a matter that has already been examined by the Court ... and contains no relevant new information”: (i) an application is considered as being “substantially the same” where the parties, the complaints and the facts are identical; (ii) the concept of complaint is characterised by the facts alleged in it and not merely by the legal grounds or arguments relied on; and (iii) where the applicant submits new information, the application will not be essentially the same as a previous application (see Kudeshkina v. Russia (no. 2) (dec.), no. 28727/11, § 68, 17 February 2015).",
"40. The Court notes that the decisions by Russian courts and investigators in the matter of the tracking device (see paragraphs 13 and 17 above), which it did not have the opportunity to consider when adopting the Volodina judgment, constitute “relevant new information” within the meaning of the third criterion above. Accordingly, this part of the application cannot be rejected in accordance with Article 35 § 2 (b) of the Convention.",
"Conclusion",
"41. The Court finds that the application is neither manifestly ill-founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible.",
"MeritsSubmissions by the parties",
"Submissions by the parties",
"Submissions by the parties",
"(a) The applicant",
"42. The applicant submitted that she had been the victim of repeated acts of online violence, including revenge porn, cyber harassment, and cyberstalking. The Russian authorities had failed to fulfil their positive obligations under Article 8 of the Convention to secure respect for her private life by providing effective protection against online violence, preventing further online violence and by carrying out an effective investigation. In her view, an adequate legal framework for protection from online violence should include: (1) criminalisation of online violence and acknowledging that online violence is a form of violence against women, (2) possibility for a victim to apply for protection order, (3) protection services for victims (e.g. helplines), (4) specialised trainings and protocols for the law enforcement officials. While many States had updated their existing legal frameworks or enacted specific laws to address online stalking, online harassment and the non ‑ consensual sharing of intimate images, Russia did not establish a holistic legal framework punishing all forms of domestic violence, including those perpetrated in cyberspace.",
"43. Unlike a majority of Council of Europe member States, the Russian legislation does not provide for protection orders for victims of domestic violence whether offline or online. The court may apply a new restraining measure under Article 105.1 of the Code of Criminal Procedure on the motion of the investigator; the decision to raise the motion before the court is at the investigator’s full discretion. In the applicant’s case, the investigator had refused to file the motion without even assessing her arguments. This provision of the Russian law is ineffective and insufficient to protect domestic violence victims. No member of the police or investigative team to whom she had appealed had any special preparation or qualification for dealing with cases of domestic violence. They had not conducted a gender-sensitive risk assessment of her situation, offered any form of protective measures, or explained her rights and opportunities to keep herself safe. The authorities had treated the cyberviolence and controlling behaviour as a trivial matter unworthy of their intervention.",
"44. An investigation into the dissemination of the applicant’s intimate photos had been deliberately delayed; a criminal case was opened only in March 2018, that is two years after the first complaint of revenge porn in 2016. If the authorities had not known S.’s whereabouts they could have initiated a search for him but had not done so. He had been questioned by the police in August 2016 in connection with an attempt on the applicant’s life (she referred to Volodina, cited above, § 23). That the authorities had not questioned him about the fake accounts indicated that they did not consider these actions to be part of the same pattern of domestic violence, refusing to make a connection between them and failing to acknowledge the various forms that domestic violence may take. It was not until 2018 that the authorities had first interviewed S. and made a request to VKontakte to establish the Internet addresses from which the fake profiles had been created. No request to provide information about the page owner had been sent to Instagram. The applicant had been first asked to give evidence about the fake Instagram accounts in May 2018, more than two years after her complaint. After the authorities established that the telephone number in Azerbaijan which had been used for creating two fake profiles in 2018 belonged to G., they did not declare him a suspect, establish his connection with S. or investigate how he had obtained the applicant’s photos or her personal details and what his motive to create the fake profiles had been. The authorities had not informed the applicant of progress in investigation or given her access to the case file. Likewise, the investigation into the tracking device had been closed three years after her complaint. These elements indicated that the authorities in principle were not prepared to prosecute anyone for the cyberviolence of which she was the victim.",
"(b) The Government",
"45. The Government submitted that Russian law offers sufficient protection against interference with the person’s private life, including non ‑ consensual publication of the person’s image. Alongside the criminal-law protection extended by Article 137 of the Criminal Code, there exist civil ‑ law mechanisms offering redress for the violations that have already occurred, preventing the repetition of abusive behaviour and ensuing accountability of those responsible. The person affected may ask the court to recognise an infringement of his or her rights, demand that any unlawfully obtained content be removed and no longer used, claim compensation in respect of non-pecuniary damage (Articles 150, 151.1 and 152.2 of the Civil Code), and also make use of remedies available under the personal-data protection legislation. Accordingly, the Russian legislation, to the extent it was relevant to the circumstances of the applicant’s complaint, was sufficient in its scope to satisfy the State’s positive obligation under Article 8 to provide the applicant with the protection against online harassment.",
"46. On the effectiveness of the investigation, the Government emphasised that there was no absolute right to obtain the prosecution or conviction of any particular person provided that there were no culpable failures in seeking to hold perpetrators of criminal offences accountable. In 2016 the police in Ulyanovsk had registered the applicant’s report and carried out an initial verification of the information. S.’s whereabouts had not been immediately ascertained and he had not been available for questioning. In 2018 a criminal case had been opened and S. had been required to sign an undertaking to appear. The investigation had taken evidence from the applicant, her family members, and S., and obtained data from phone service providers and social media platforms. Nevertheless, the evidence in support of the applicant’s claim that S. was the perpetrator had been insufficient. She had carried on talking to him via social media and asking him for money which, in the Government’s view, showed that their relationship was “not as straightforward and simple as the applicant described [it]”. In those circumstances, a more restrictive measure, such as an order to prohibit certain conduct, could not be applied. The Russian courts had upheld the investigator’s decision refusing application of that measure at two levels of jurisdiction. Further significant progress in the investigation had been achieved in 2019 when the Russian investigators had received information from their colleagues in Azerbaijan. Throughout the investigation, the authorities had kept the applicant informed of their actions.",
"The Court’s assessment",
"(a) General principles",
"47. The Court reiterates that the concept of private life includes a person’s physical and psychological integrity which the States have a duty to protect, even if the danger comes from private individuals (see Söderman v. Sweden [GC], no. 5786/08, §§ 78-80, ECHR 2013, and also X and Y v. the Netherlands, 26 March 1985, § 23, Series A no. 91; M.C. v. Bulgaria, no. 39272/98, § 150, ECHR 2003 ‑ XII; A. v. Croatia, no. 55164/08, §§ 59 ‑ 60, 14 October 2010; and Eremia v. the Republic of Moldova, no. 3564/11, §§ 72-73, 28 May 2013). Children and other vulnerable individuals, in particular, are entitled to effective protection. The particular vulnerability of victims of domestic violence and the need for active State involvement in their protection has been emphasised both in international instruments and in the Court’s well-established case-law (see Bevacqua and S. v. Bulgaria, no. 71127/01, § 65, 12 June 2008; Hajduová v. Slovakia, no. 2660/03, §§ 41, 30 November 2010; and Volodina, cited above, § 72).",
"48. The acts of cyberviolence, cyberharassment and malicious impersonation have been categorised as forms of violence against women and children capable of undermining their physical and psychological integrity in view of their vulnerability (see paragraphs 20, 23 and 24 above, and K.U. v. Finland, no. 2872/02, § 41, ECHR 2008). The Court has recently pointed out that “cyberharassment is currently recognised as an aspect of violence against women and girls and can take a variety of forms, such as cyber ‑ violations of private life ... and the taking, sharing and handling of information and images, including intimate ones” (see Buturugă, cited above, § 74). In the context of domestic violence, intimate partners are frequently the likely perpetrators of the acts of cyber ‑ stalking or surveillance (ibid. , see also paragraph 20 above).",
"49. Online violence, or cyberviolence, is closely linked with offline, or “real-life”, violence and falls to be considered as another facet of the complex phenomenon of domestic violence (see Buturugă, cited above, §§ 74 and 78, and paragraph 20 above). The States have a positive obligation to establish and apply effectively a system punishing all forms of domestic violence and to provide sufficient safeguards for the victims (see Opuz v. Turkey, no. 33401/02, § 145, ECHR 2009, and Bălşan v. Romania, no. 49645/09, § 57, 23 May 2017). The positive obligation applies to all forms of domestic violence, whether occurring offline or online. The Court has found that this positive obligation – in some cases under Articles 2 or 3 and in other instances under Article 8 taken alone or in combination with Article 3 of the Convention – includes in particular: (a) the obligation to establish and apply in practice an adequate legal framework affording protection against violence by private individuals; (b) the obligation to take the reasonable measures in order to avert a real and immediate risk of recurrent violence of which the authorities knew or ought to have known, and (c) the obligation to conduct an effective investigation into the acts of violence (see, most recently, Kurt v. Austria [GC], no. 62903/15, § 164, 15 June 2021, and also Bevacqua and S., § 65; Eremia, § 75; Volodina, §§ 76 ‑ 77 and 86, and Buturugă, §§ 60-62, all cited above). The Court reiterates that the State’s positive obligations under Article 8 to safeguard an individual’s physical or psychological integrity may extend to questions relating to the effectiveness of a criminal investigation even where the criminal liability of agents of the State is not at issue (see K.U. v. Finland, § 46, and Söderman, § 84, both cited above).",
"(b) Application of the principles",
"50. There is no dispute as to the applicability of Article 8 in the instant case: the Court has found in the first judgment that the publication of the applicant’s intimate photographs “undermined her dignity, conveying a message of humiliation and disrespect” (see Volodina, cited above, § 75). The non-consensual publication of her intimate photographs, the creation of fake social-media profiles which purported to impersonate her, and her tracking with the use of a GPS device interfered with her enjoyment of her private life, causing her to feel anxiety, distress and insecurity. Accordingly, it must be determined whether the authorities, once they became aware of the interference with the applicant’s rights under Article 8 of the Convention, have discharged their obligations under that provision to take sufficient measures to put an end to that interference and prevent it from recurring (see Eremia, cited above, § 75).",
"51. The Court will first examine whether the respondent State has put in place an adequate legal framework providing the applicant with protection against the acts of cyberviolence (see Söderman, cited above, § 89-91). It reiterates that, as regards the acts which encroach on an individual’s psychological integrity, the obligation of an adequate legal framework does not always require that a criminal-law provision covering the specific act be put in place. The legal framework could also be made up of civil-law remedies capable of affording sufficient protection, possibly combined with procedural remedies such as the granting of an injunction (ibid., §§ 85 and 108, with further references).",
"52. The Russian law contains both civil-law mechanisms and criminal-law provisions for the protection of an individual’s private life. The definition of “private life” enshrined in the well-established case-law of the Constitutional Court (see paragraph 25 above) is sufficiently broad to cover multiple aspects of the person’s physical and social identity and various elements of it, such as the person’s name, image and personal data (compare S. and Marper v. the United Kingdom [GC], nos. 30562/04 and 30566/04, § 66, ECHR 2008).",
"53. The Civil Code prohibits, in a general manner, any information relating to an individual’s private life from being gathered, kept, used or shared without the consent of the person concerned. It also specifically establishes the protection against the unauthorised use or publication of the person’s image (see paragraphs 28 and 29 above). Infringements may give rise to injunctive relief and tort liability (see paragraphs 26 and 27 above).",
"54. More serious cases of interference with an individual’s private life can lead to criminal liability. Article 137 of the Criminal Code makes it an offence to collect or disseminate the information relating to the person’s private life without the consent of the person concerned (see paragraph 30 above). The Supreme Court’s binding interpretation has upheld the application of this provision to all means by which information happens to be obtained, including various forms of surveillance with and without the use of technical equipment (see paragraph 31 above).",
"55. The applicant finds fault with the above-mentioned provisions in that they do not form part of a holistic framework punishing all forms of domestic violence and do not explicitly target its manifestations in cyberspace, such as online stalking or impersonation. For the Court, her criticism is part of the broader question of whether or not the Russian State has enacted legislation to criminalise acts of domestic violence, whether they happen to take place offline or online. The Court examined this question in detail in the first Volodina case and concluded that the existing Russian legal framework was deficient in several important respects and failed to meet the requirements inherent in the State’s positive obligation to establish and apply effectively a system punishing all forms of domestic violence (see Volodina, cited above, §§ 80-85). It is not necessary to revisit this general finding in the instant case, in which the scope of the Court’s inquiry is more limited. It needs not to review any alleged deficiencies of the private-life legislation in abstracto, but rather to determine whether or not the manner in which it was applied in the circumstances of the applicant’s case gave rise to a violation of the Convention (see Roman Zakharov v. Russia [GC], no. 47143/06, § 164, ECHR 2015).",
"56. The applicant complained that her name, personal details and photographs had been used for creating fake social media profiles, that a GPS tracker had been planted to track her movements, and that she had been the target of death threats sent through social media (see paragraphs 6, 10, 11 and 13 above). The domestic authorities accepted that these acts presented the requisite elements of prosecutable offences under Russian law. The collection of information on the applicant’s whereabouts and the dissemination of her images and personal details on information and communications technology (ICT) networks disclosed a serious interference with her privacy punishable under Article 137 of the Criminal Code, while death threats were prosecutable under Article 119 of the Criminal Code, regardless of the mode of their communication – offline or online. In the light of the State’s margin of appreciation in choosing legal means to ensure compliance with the Convention, the Court considers that the existing framework equipped the Russian authorities with legal tools for investigating the acts of cyberviolence of which the applicant was the victim.",
"57. The Court considers that the acts of cyberviolence in the instant case were sufficiently serious to require a criminal-law response on the part of the domestic authorities. The publication of the applicant’s intimate photographs, calculated to attract the attention of her son, his classmates and their teacher (see paragraph 6 above), sought to humiliate and degrade her. As noted above, the tracking of her movements by means of a GPS device and the sending of death threats on social media caused her to feel anxiety, distress and insecurity. The Court also reiterates that both the public interest and the interests of the protection of vulnerable victims from offences infringing on their physical or psychological integrity require the availability of a remedy enabling the perpetrator to be identified and brought to justice (see K.U. v. Finland, cited above, § 47, and Volodina, cited above, § 100). Civil proceedings which might have been an appropriate remedy in situations of lesser gravity would not have been able to achieve these objectives in the present case.",
"58. The Court further reiterates that the State authorities have a responsibility to provide adequate protection measures to the victims of domestic violence in the form of effective deterrence against serious breaches of their physical and psychological integrity (see Opuz, cited above, § 176, and Volodina, cited above, § 86). Whereas in a large majority of Council of Europe member States victims of domestic violence may apply for immediate “restraining” or “protection” orders capable of forestalling the recurrence of domestic violence, Russia has remained among only a few member States whose national legislation does not provide victims of domestic violence with any comparable measures of protection (see Volodina, cited above, §§ 88-89). The respondent Government did not identify any effective remedies that the authorities could have used to ensure the applicant’s protection against recurrent acts of cyberviolence. The civil law mechanism does not include the rigorous monitoring of the perpetrator’s compliance with the terms of an injunction capable of ensuring the victim’s safety from the risk of recurrent abuse (ibid., § 89).",
"59. As to the orders prohibiting certain conduct (see paragraph 32 above), the Court is unable to find that they offer sufficient protection to victims of domestic violence in the applicant’s situation. The order is a measure of restraint limited to the sphere of criminal law, the availability of which depends on the existence of a criminal case. However, as noted above, the domestic authorities may delay or refuse to open a criminal case, including in respect of serious incidents such as threats of death, malicious impersonation or stalking with the use of a tracking device. Moreover, it is also difficult to expect that such orders can be granted in practice with the urgency that is often essential in domestic violence situations. The application for an order is also conditional on the procedural status of the perpetrator: so long as the investigation has not gathered evidence to charge the perpetrator, a measure of restraint can be imposed on a suspect only in “exceptional circumstances” (see Birulev and Shishkin v. Russia, nos. 35919/05 and 3346/06, § 33, 14 June 2016). Since the case against S. had not progressed beyond the stage of suspicion, the shortcomings of the preceding investigation adversely affected the applicant’s chances of having that measure of restraint applied to him.",
"60. It is even more significant that an order prohibiting certain conduct is not directly accessible to the victim who must petition the investigator to raise an application to that effect before a court. The investigator has full discretion to grant or deny the petition. The investigator’s refusal is amenable to judicial review, for which the applicant unsuccessfully applied (see paragraph 12 above). The Ulyanovsk courts, however, did not undertake an independent scrutiny of the substantive grounds for refusal, confining themselves to a finding that the investigator had not overstepped the limits of his powers (compare Lyapin v. Russia, no. 46956/09, § 138, 24 July 2014).",
"61. The Court has found in the first Volodina case that the response of the Russian authorities to the known risk of recurrent violence on the part of the applicant’s former partner was manifestly inadequate and that, through their inaction and failure to take measures of deterrence, they allowed S. to continue threatening, harassing and assaulting the applicant without hindrance and with impunity (see Volodina, cited above, § 91). This finding is applicable in the circumstances of the present case in which the authorities did not consider at any point in time what could and should be done to protect the applicant from recurrent online violence.",
"62. Turning to the manner in which the Russian authorities conducted an investigation into the applicant’s reports, the Court reiterates that, to be effective, an investigation must be prompt and thorough. The authorities must take all reasonable steps to secure evidence concerning the incident, including forensic evidence. Special diligence is required in dealing with domestic-violence cases, and the specific nature of the domestic violence must be taken into account in the conduct of the domestic proceedings (see Volodina, cited above, § 92).",
"63. As regards the investigation into the fake social media profiles and the dissemination of the applicant’s intimate photos, a criminal case was opened only on 6 March 2018, almost two years after the applicant had first reported the fake profiles to the police on 22 June 2016 (see paragraphs 7 and 9 above). Before that, it would appear that the police sought to dispose hastily of the matter on formal grounds, citing lack of territorial jurisdiction or lack of an offence (see paragraphs 7 and 8 above), instead of making a serious and genuine attempt to establish the circumstances of the applicant’s malicious impersonation on social media. Since States are responsible for delays, whether attributable to the conduct of their judicial or other authorities or to structural deficiencies in its judicial system which cause delays (see Rutkowski and Others v. Poland, nos. 72287/10 and 2 others, § 128, 7 July 2015), it is immaterial whether the initial two-year delay was caused by a lack of clear rules on jurisdiction for investigating online offences or by the reluctance of individual police officers to take up the case.",
"64. The Government sought to account for the delay by the fact that S. was unavailable for questioning. This explanation does not convince the Court. It is apparent from the circumstances of the first Volodina case that as early as August 2016 the police in Samara could have taken evidence from S. in connection with another offence committed against the applicant (see Volodina, cited above, § 23). If S. had indeed gone missing, the police could have made use of the extensive powers available to them under the Police Act and the Operational-Search Activities Act to search for and apprehend persons suspected of criminal offences (see Shimovolos v. Russia, no. 30194/09, §§ 33-38, 21 June 2011). In any event, whether or not S. was readily available for questioning, the police should have acted promptly and in good faith to secure forensic evidence of the alleged offences, including the identification of phone numbers and Internet addresses which had been used to create the fake profiles and upload the applicant’s photos. However, this was not done until the criminal case was opened in 2018, resulting in a loss of time and undermining the authorities’ ability to secure evidence relating to the acts of cyberviolence.",
"65. The investigation which was conducted from 2018 onwards cannot be said to have been expeditious or sufficiently thorough. It took the authorities nearly a year to obtain information about the Internet addresses of the fake accounts from the Russian company operating the social media platform VKontakte; the authorities did not send any requests to Instagram to identify the owner of the fake accounts. The questioning of the applicant and inspection of the fake pages on Instagram had taken place in May 2020, that is two years since her complaint in 2018. The authorities appear to have established both the person whose phone number and Internet address had been used to create the fake accounts in 2016, and the owner of the phone number in Azerbaijan which had been used to create two fake accounts in 2018. However, their communications and possible links with S. were not investigated; it was not established how the person in Azerbaijan could have come by the applicant’s intimate photos and personal data.",
"66. A “pre-investigation inquiry” into the other offences which the applicant had reported to the police did not lead to any criminal case being opened. In the matter of the tracking device found in the applicant’s bag, the procedural decision on her complaint was issued almost three years later after her report to the police (see paragraphs 13 and 17 above). The investigative authorities did not contact her about the complaint, did not ask S. any questions about the device, and did not deploy technical means to determine the number of the SIM card installed in the device using the service provider’s network infrastructure. The authorities also failed to investigate the death threats which the applicant had received online and reported to the police in August and September 2019 (see paragraph 11 above). Without undertaking any investigative steps, the police concluded that no offence had been committed. As the Court found in the first Volodina case, the police would arbitrarily raise the bar for evidence required to launch criminal proceedings, claiming that threats of death had to be “real and specific” in order to be prosecutable (see Volodina, cited above, § 98). Most importantly, the authorities failed to take a global view of the situation by considering whether those incidents could be said to be so connected in type and context with the physical assaults the applicant reported (see Volodina, cited above, §§ 31-36) as to justify the conclusion that they amounted to a single course of conduct (see Buturugă, cited above, § 78).",
"67. As a consequence of the slow-paced investigation into the fake social media profiles, the prosecution eventually became time-barred. The criminal case against S. was discontinued by application of the statute of limitations on his initiative, even though his involvement in the creation of the fake profiles appears to have been established (see paragraph 20 above). The Court has found violations of the obligation to conduct an effective investigation in cases where the proceedings had continued unduly or had ended by prescription allowing the perpetrators to escape accountability (see Opuz, cited above, § 151; P.M. v. Bulgaria, no. 49669/07, §§ 64-66, 24 January 2012, and, in a factually similar situation, Barsova v. Russia [Committee], no. 20289/10, §§ 35-40, 22 October 2019). The effectiveness principle means that the domestic authorities must on no account be prepared to let the physical or psychological suffering inflicted go unpunished. This is essential for maintaining the public’s confidence in, and support for, the rule of law and for preventing any appearance of the authorities’ tolerance of or collusion in acts of violence (see Okkalı v. Turkey, no. 52067/99, § 65, ECHR 2006 ‑ XII (extracts)). By failing to conduct the proceedings with the requisite diligence, the Russian authorities bear responsibility for their failure to ensure that the perpetrator of acts of cyberviolence be brought to justice. The impunity which ensued was enough to shed doubt on the ability of the State machinery to produce a sufficiently deterrent effect to protect women from cyberviolence.",
"68. In sum, the Court finds that, even though the existing framework equipped the authorities with legal tools to prosecute the acts of cyberviolence of which the applicant was a victim, the manner in which they actually handled the matter – notably a reluctance to open a criminal case and a slow pace of the investigation resulting in the perpetrator’s impunity – disclosed a failure to discharge their positive obligations under Article 8 of the Convention. There has accordingly been a violation of that provision.",
"APPLICATION OF ARTICLE 41 OF THE CONVENTION",
"69. 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.”",
"70. The applicant asked the Court to determine the appropriate amount of the award in respect of non-pecuniary damage. She claimed 5,386.46 euros (EUR) in respect of legal, administrative and postal expenses.",
"71. The Government submitted that the claim in respect of non ‑ pecuniary damage was to be rejected for failure to specify the amount claimed. They further submitted that the legal costs relating to the threats of death and the tracking-device incident fell out of the scope of the case and should not be reimbursed.",
"72. Since non-pecuniary damage does not, by its nature, lend itself to precise calculation, the Court has accepted to examine claims in respect of non-pecuniary damage for which applicants did not quantify the amount, leaving it to the Court’s discretion (see Nagmetov v. Russia [GC], no. 35589/08, § 72, 30 March 2017). Making its own assessment on an equitable basis, the Court awards the applicant EUR 7,500 in respect of non ‑ pecuniary damage, plus any tax that may be chargeable. The payment is to be effected on the basis of the applicant’s new identity documents which were communicated to the Government on giving notice of the application.",
"73. The Court further notes that the claim for costs and expenses has been properly substantiated, reasonable as to quantum and relevant to the matters considered in the present application. It awards the amount claimed in respect of costs and expenses, plus any tax that may be chargeable to the applicant, payable into the bank account of the applicant’s representative.",
"74. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points."
] |
technology_data
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235
|
Ruotsalainen v. Finland
|
16 June 2009
| "The applicant was running his van on fuel that was more leniently taxed than the diesel oil he shou(...TRUNCATED)
| "The Court held that had been a violation of Article 4 (right not to be tried or punished twice) of (...TRUNCATED)
|
Taxation and the European Convention on Human Rights
|
Right not to be tried or punished twice (Article 4 of Protocol No. 7)
| ["I. THE CIRCUMSTANCES OF THE CASE","5. The applicant was born in 1969 and lives in Lapinlahti.","6.(...TRUNCATED)
| ["II. RELEVANT DOMESTIC LAW AND PRACTICE","16. The Finnish system relating to the use as motor fuel (...TRUNCATED)
|
economy_labour
|
238
|
Khmel v. Russia
|
12 December 2013
| "At the time of the facts, the applicant was a member of the Murmansk regional legislature. He was t(...TRUNCATED)
| "The Court held that there had been a violation of Article 8 (right to respect for private life) of (...TRUNCATED)
|
Right to the protection of one’s image
|
Persons arrested or under criminal prosecution
| ["I. THE CIRCUMSTANCES OF THE CASE","4. The applicant was born in 1960 and lives in Murmansk. At the(...TRUNCATED)
| ["II. RELEVANT DOMESTIC LAW","A. Code of Administrative Offences of the Russian Federation","29. The(...TRUNCATED)
|
technology_data
|
476
|
Delfi AS v. Estonia
|
16 June 2015 (Grand Chamber)
| "This was the first case in which the Court had been called upon to examine a complaint about liabil(...TRUNCATED)
| "The Court held that there had been no violation of Article 10 (freedom of expression) of the Conven(...TRUNCATED)
|
New technologies
|
Internet
| ["I. THE CIRCUMSTANCES OF THE CASE","10. The applicant company is a public limited liability company(...TRUNCATED)
| ["II. RELEVANT DOMESTIC LAW AND PRACTICE","33. The Constitution of the Republic of Estonia ( Eesti V(...TRUNCATED)
|
technology_data
|
486
|
García Mateos v. Spain
|
19 February 2013
| "This case concerned a supermarket employee, who asked for a reduction in her working time because s(...TRUNCATED)
| "The Court held that there had been a violation of Article 6 § 1 (right to a fair hearing within a (...TRUNCATED)
|
Work-related rights
|
Reconciling professional and family life
| ["I. THE CIRCUMSTANCES OF THE CASE","5. The applicant was born in 1965 and lives in Perales Del Río(...TRUNCATED)
| ["II. RELEVANT DOMESTIC LAW AND PRACTICE","...","1 8. The relevant provisions of the Institutional L(...TRUNCATED)
|
economy_labour
|
581
|
D. v. the United Kingdom
|
2 May 1997
| "The applicant, originally from St Kitts (in the Caribbean), was arrested for cocaine possession upo(...TRUNCATED)
| "The Court emphasised that aliens who had served their prison sentences and were subject to expulsio(...TRUNCATED)
|
Health
|
Deportation of seriously ill persons
| ["I. Particular circumstances of the case","A. The applicant","6. The applicant was born in St Kitts(...TRUNCATED)
| ["II. Relevant domestic law and practice","22. The regulation of entry into and stay in the United K(...TRUNCATED)
|
health_life
|
583
|
N. v. the United Kingdom
|
27 May 2008 (Grand Chamber)
| "The applicant, a Ugandan national, was admitted to hospital days after she arrived in the UK as she(...TRUNCATED)
| "The Court noted that the United Kingdom authorities had provided the applicant with medical treatme(...TRUNCATED)
|
Health
|
Deportation of seriously ill persons
| ["I. THE CIRCUMSTANCES OF THE CASE","8. The applicant was born in Uganda in 1974. She currently live(...TRUNCATED)
| ["THE LAW","I. ADMISSIBILITY OF THE COMPLAINTS","20. The applicant complained that, given her illnes(...TRUNCATED)
|
health_life
|
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