Oxford Journal of Law and Religion, (2013), pp. 12 doi:10.

1093/ojlr/rwt049

Avilkina and others v Russia (Application no 1585/09): European Court of Human Rights ` vre (President), Steiner, Hajiyev, (First Section): Berro-Lefe , Dedov JJ (unanimous): 6 June 2013 Sicilianos, Mse, Turkovic
Human Rights Right to respect for private and family life Protection of personal data Interference with Refusal of blood transfusions by Jehovahs Witnesses Public Prosecutors Office inquiring into the lawfulness of Jehovahs Witnesses practices Prosecutor requesting that hospitals submit medical records of Jehovahs Witnesses Disclosure of Jehovahs Witnesses medical files Whether disclosure necessary to ensure patients safety, to protect the rights of medical personnel treating Jehovahs Witnesses, and to safeguard rights of minor patients Whether disclosure of medical files proportionate to legitimate aims pursued European Convention on Human Rights, art 8 The Court declared the complaints raised by two applicants, whose medical files had been disclosed to the prosecutor, admissible. The applicants were practising Jehovahs Witnesses and refused blood transfusion in their treatments. Their refusal was communicated to the prosecutor, who had previously requested that public health authorities report such cases. The Court noted that medical records belonged to a patients private life; consequently, the disclosure of the applicants medical files constituted an interference with the applicants right to respect for their private life as safeguarded by Article 8 of the Convention. With regard to the issue of whether the interference was justified in accordance with paragraph 2 of Article 8, the Court accepted the argument that the disclosure of medical files had a basis in domestic law, but noted that such provisions were worded in rather general terms. Concerning the necessity of such measures in a democratic society, the Court reiterated that the protection of personal data was of fundamental importance to a persons enjoyment of Article 8 and that respecting the confidentiality of health data was vital to maintain confidence of the public in the health services. Failure to maintain that confidence would mean that those in need of medical assistance could be deterred from seeking treatment, thus endangering their own health. While assessing the proportionality of the measures, the Court underlined that such confidentiality could be balanced, for instance, by the interest of prosecuting crime, noting that it had recognized that a margin of appreciation should be left to national authorities in striking a fair balance in similar conflicts of interests. Nevertheless, in the present case the applicants were not suspects nor accused in any criminal investigation nor were they in a life-threatening situation in which the prosecutor was asked to intervene. The prosecutor was motivated by general complaints lodged with his office against Jehovahs Witnesses, thus the Court asserted that the prosecutor could have tried to obtain the applicants consent for the disclosure or used other less invasive means to follow up its inquiries. Consequently, the Court considered that the means employed by the prosecutor in conducting the inquiry need not have been so oppressive for the applicants. Since the collection by the prosecutors office of confidential medical information concerning the applicants was not accompanied by sufficient safeguards to prevent disclosure inconsistent with the respect for the applicants private life, the Court found unanimously a violation of Article 8 of the Convention (see paragraphs 3032, 4548, 5354). The applicants also complained under Article 14 in conjunction with Article 8, arguing that the prosecutor was targeting Jehovahs Witnesses exclusively; however, the Court held that there was no

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need to examine the same facts in the light of Article 14. The Court granted the applicants claims and awarded each of them EUR 5,000 in respect of non-pecuniary damage. Recorded at: http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-120071 Reported by: THIAGO ALVES, thiago.felipe.alves@gmail.com doi:10.1093/ojlr/rwt049