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European Journal of Health Law 16 (2009) 281-292 brill.

nl/ejhl

SELECTED LEGISLATION AND JURISPRUDENCE

European Court of Human Rights*

ECHR 2009/9 Case of Schlumpf v. Switzerland, 8 January 2009, no. 29002/06


(First section)

The facts
The applicant, Nadine Schlumpf, was registered at birth in 1937 under the name
Max Schlumpf, of male sex. According to the applicant, the psychological suer-
ing caused by her gender identity disorder goes back as far as her childhood and
has repeatedly led her to the brink of suicide. Although by the age of about 40 she
was already certain of being transsexual, she had accepted the responsibilities of a
husband and father until her children had grown up and her wife had died of
cancer in 2002. The applicant decided in 2002 to change sex and from then on
lived her daily life as a woman. She began hormonal therapy and psychiatric and
endocrinological treatment in 2003. An expert medical report in October 2004
conrmed the diagnosis of male-female transsexualism and stated that the appli-
cant satised the conditions for a sex-change operation.
In November 2004 the applicant asked her health-insurers to pay the costs of
the sex-change operation, and supplied a copy of the expert report. On 29 Novem-
ber 2004 they refused to reimburse the costs, noting that according to the case-law
of the Federal Insurance Court the mandatory clause providing for reimburse-
ment of the costs of a sex-change operation which health-insurance policies were
required to include applied only in cases of true transsexualism, which could
not be established until there had been an observation period of two years.
On 30 November 2004 the applicant nevertheless successfully underwent the
operation. In mid-December 2004 she again applied to her health-insurers, who
again refused.
In late January 2005 the applicant appealed unsuccessfully against that deci-
sion. She attempted to show that at the stage medical science had then reached it
was possible to identify true cases of transsexualism without waiting for two years

*) These summaries are based on the provisional text of the judgements of the European Court of Human
Rights. These judgments are still subject to editorial revision before their reproduction in Reports of Judg-
ments and Decisions. For the full provisional text, see: http://www.echr.coe.int.

Koninklijke Brill NV, Leiden, 2009 DOI: 10.1163/157180909X453099


282 Selected Legislation and Jurisprudence / European Journal of Health Law 16 (2009) 281-292

to elapse. She also proposed that the Senior Consultant of the Zurich Psychiatric
Clinic be asked to give evidence in the context of a further investigation.
On 14 February 2005 the applicants civil status was modied to reect her
sex-change and she was registered under the forename of Nadine.
In early April 2005 the applicant appealed to the cantonal insurance court and
asked for a public hearing. In June 2005, without holding a hearing, the court set
aside the health- insurers refusal to pay the costs of the sex-change operation and
remitted the case for a further investigation and reconsideration.
In July 2005 the health-insurers appealed to the Federal Insurance Court, argu-
ing that the cantonal insurance court had disregarded the Federal Courts case-law
to the eect that costs could only be reimbursed after a period of two years and
submitting in addition that the existence of an illness had not been established.
In September 2005 the applicant explicitly asked the Federal Insurance Court
for a public hearing and requested that it call expert witnesses to answer questions
on the treatment of transsexualism. Her request was refused, among other reasons
because the Federal Court considered that the relevant issues were legal questions,
so that a public hearing was not necessary. It also rearmed the pertinence of the
two-year observation period. It noted that despite what various experts had sub-
mitted during the proceedings and the stage modern medical science had reached,
caution was vital, given in particular the irreversibility of the operation and the
need to avoid unjustied operations.
The Federal Insurance Court noted that at the time of the operation the appli-
cant had been under psychiatric observation for less than two years and held that
the health-insurers had been justied in refusing to reimburse the costs.

The law
Relying on Article 6 1 (right to a fair trial), the applicant complained of an
infringement of her right to a fair trial and to a public hearing. She further alleged
that a fair balance had not been preserved between her interests and those of her
health-insurers, contrary to Article 8 (right to respect for private life).

Alleged violation of Article 6 of the Convention

The Court considers that it is disproportionate not to accept expert opinions


especially as it was not in dispute that the applicant was ill. By refusing to allow
the applicant to adduce such evidence, on the basis of an abstract rule which had
its origin in two of its own decisions in 1988, the Federal Insurance Court had
substituted its view for that of the medical profession, whereas the Court has
previously ruled that determination of the need for sex-change measures is not a
matter for judicial assessment.
The Court holds that the applicants right to a fair hearing before the Federal
Insurance Court has been infringed, contrary to Article 6 1.
Selected Legislation and Jurisprudence / European Journal of Health Law 16 (2009) 281-292 283

The Court reiterates that the public nature of judicial proceedings is a fundamen-
tal principle of any democratic society and emphasises a litigants right to a public
hearing at at least one level of jurisdiction. It observes that the applicant could not
be considered to have waived the right to a public hearing before the Federal
Court.
The Court observes that as the question of the applicants sex-change is not an
exclusively legal or technical matter, and given the dierence of opinion between
the parties as to the necessity of the observation period, a public hearing was
necessary.
Consequently, the Court concludes that the applicants right to a public hear-
ing has not been respected, contrary to Article 6 1.

Alleged violation of Article 8 of the Convention

The Swiss Government submitted that in order to restrict health-insurance costs


in the general interest it was necessary to place limits on the services to be reim-
bursed. The applicant submitted that her age justied an exception and asserted
that she had not learned of the two-year waiting period until after the operation.
The Court considers that the period of two years, particularly at the applicants
age of 67, is likely to inuence her decision as to whether to have the operation,
thus impairing her freedom to determine her gender identity.
It points out that the Convention guarantees the right to personal self-fullment
and reiterates that the concept of private life can include aspects of gender iden-
tity. It notes the particular importance of questions concerning one of the most
intimate aspects of private life, namely a persons gender identity, for the balanc-
ing of the general interest with the interests of the individual.
The Court considers that respect for the applicants private life requires account
to be taken of the medical, biological and psychological facts, expressed unequiv-
ocally by the medical experts, to avoid the mechanical application of the two-year
delay. It concludes that, having regard to the applicants very particular situation,
and bearing in mind the respondent States latitude in relation to a question con-
cerning one of the most intimate aspects of private life, a fair balance has not been
struck between the interests of the insurance company and those of the applicant.
There has therefore been a violation of Article 8.

For these reasons, the Court unanimously holds that there has been a violation of
Article 6 1 of the Convention; by ve votes to two that there has been a viola-
tion of Article 8 of the Convention; and that the respondent State is to pay the
applicant 15,000 in respect of non-pecuniary damage and 8,000 in respect of
costs and expenses.

Joint partly dissenting opinion of Judges Vaji and Jebens.


284 Selected Legislation and Jurisprudence / European Journal of Health Law 16 (2009) 281-292

ECHR 2009/10 Case of Dauti v. Albania, 3 February 2009, no. 19206/05 (Fourth
section)

The facts
In 1992 the applicant suered a serious accident at work and was unable to con-
tinue working. Nine years later, in 2001, the applicant applied to the District
Medical Examination Commission on Capacity for Work (the District Com-
mission) seeking to have his degree of incapacity determined and to be awarded
benets. The Commission granted him Category 4 incapacity status. The appli-
cant lodged an appeal with the Medical Examination Appeals Commission on
Capacity for Work (the Appeals Commission). He claimed that he should have
been granted Category 2 incapacity status instead of Category 4. However, the
Appeals Commission revoked the District Commissions decision in its entirety.
It declared the applicant t for work and ineligible for incapacity benets.
Then the applicant initiated civil proceedings with the Tirana District Court to
challenge the lawfulness of the Appeals Commissions decision. The District
Court dismissed the applicants action on the grounds that, pursuant to the Social
Security Act, the decisions of the Appeals Commission were nal and binding
and not subject to scrutiny by the courts. This decision was upheld by the Court
of Appeal and the Constitutional Court.

The law
Alleged violation of Article 6 1 of the Convention

The applicant complained under Article 6 1 of the Convention that he had


been denied his right of access to a court in that the domestic courts had failed to
examine his complaint that the Appeals Commissions decision should be declared
null and void. Article 6 entitles everyone to a fair hearing by an independent and
impartial tribunal.

While Article 6 1 embodies the right to a court, it nevertheless does not oblige
the Contracting States to submit contestations (disputes) over civil rights and
obligations to a procedure conducted at each of its stages before tribunals
meeting the Articles various requirements. Demands of exibility and eciency,
which are fully compatible with the protection of human rights, may justify the
prior intervention of administrative or professional bodies and, a fortiori, of judi-
cial bodies which do not satisfy the said requirements in every respect. The right
to a court covers questions of fact just as much as questions of law.
The Court points out that under Article 6 1 of the Convention it is necessary
that decisions of administrative authorities which do not themselves satisfy the
requirements of that Article should be subject to subsequent control by a judicial
body that has full jurisdiction.
Selected Legislation and Jurisprudence / European Journal of Health Law 16 (2009) 281-292 285

In the instant case the applicant lodged appeals with the domestic courts, which
rejected his claims on the ground that the Appeals Commissions decision was
nal and not subject to judicial control. Moreover, the Constitutional Court
failed to address the applicants complaint about the lack of judicial control of the
Appeals Commissions decision.
It is therefore necessary to determine whether the Appeals Commission consti-
tuted an independent and impartial tribunal within the meaning of Article 6
1 of the Convention.
In order to establish whether a tribunal can be considered as independent,
regard must be had, inter alia, to the manner of appointment of its members and
their term of oce, the existence of guarantees against outside pressures and the
question whether the body presents an appearance of independence.
The Court notes that the Appeals Commission is wholly composed of medical
practitioners, appointed by the Institue of Social Security and ultimately approved
by the Ministry of Health, under whose authority and supervision the doctors
work. No legally qualied or judicial members sit on the Appeals Commission.
The law and the domestic regulations contain no rules governing the members
term of oce, their removal, resignation or any guarantee for their irremovability.
The statutory rules do not provide for the possibility of an oath to be taken by its
members. It appears that they can be removed from oce at any time, at the
whim of the Institue of Social Security, and the Ministry of Health, which exer-
cise unfettered discretion. The position of the Appeals Commission members is
therefore open to external pressures. Such a situation undermines its appearance
of independence.
Having regard to the fact that the Appeals Commission does not constitute an
independent and impartial tribunal and that its decisions, according to the law
in force at the material time, could not be challenged before a domestic court, the
Court concludes that there has been a breach of the applicants right of access to
a court under Article 6 1 of the Convention.

For these reasons, the Court unanimously holds that there has been a violation of
Article 6 1 of the Convention and that the respondent State is to pay the appli-
cant 6,000 in respect of non-pecuniary damage.

ECHR 2009/11 Case of ilih v. Slovenia, 9 April 2007, no. 71463/01 (Grand
Chamber)

See ECHR 2007/8 for the judgment of 28 June 2007 on this case by the Third
Section of the Court.
286 Selected Legislation and Jurisprudence / European Journal of Health Law 16 (2009) 281-292

The facts
The applicants son, Gregor ilih, aged 20, died in hospital on 19 May 1993 after
suering anaphylactic shock, probably as a result of an allergic reaction to one of
the drugs administered to him by a duty doctor in an attempt to treat his urticaria.
On 13 May 1993 the applicants lodged a criminal complaint against the duty
doctor for medical negligence, which was subsequently dismissed for lack of suf-
cient evidence. On 1 August 1994, the applicants, now acting as subsidiary
prosecutors, lodged a request to launch a criminal investigation. The investigation
was reopened on 26 April 1996 and an indictment lodged on 28 February 1997.
The case was twice remitted for further investigation before the criminal proceed-
ings were discontinued on 18 October 2000 on the ground, once again, of insuf-
cient evidence. The applicants appealed unsuccessfully.
In the meantime, on 6 July 1995 the applicants also brought civil proceedings
against the hospital and the doctor concerned. The rst-instance proceedings,
stayed between October 1997 and May 2001, were terminated with the claim
being dismissed on 25 August 2006, more than 11 years after the proceedings
were rst instituted. During that period, the case was dealt with by at least six
dierent judges. Subsequently, the applicants lodged an appeal and an appeal on
points of law, both of which were unsuccessful.
The case is currently still pending before the Constitutional Court.

This summary is restricted to the issues raised under Article 2 of the Convention.

The law
Alleged violation of Article 2 of the Convention in its procedural limb

The applicants, relying on Article 2 of the Convention, complained that the crim-
inal and civil proceedings they had instituted did not allow for the prompt and
eective establishment of the responsibility for their sons death.

As the Court has held on several occasions, the procedural obligation of Article 2
requires the States to set up an eective independent judicial system so that the
cause of death of patients in the care of the medical profession, whether in the
public or the private sector, can be determined and those responsible made
accountable. The Court reiterates that this procedural obligation is not an obliga-
tion of result but of means only.
Even if the Convention does not as such guarantee a right to have criminal
proceedings instituted against third parties, the Court has said many times that
the eective judicial system required by Article 2 may, and under certain circum-
stances must, include recourse to the criminal law. However, if the infringement
of the right to life or to personal integrity is not caused intentionally, the proce-
dural obligation imposed by Article 2 to set up an eective judicial system does
Selected Legislation and Jurisprudence / European Journal of Health Law 16 (2009) 281-292 287

not necessarily require the provision of a criminal-law remedy in every case. In


the specic sphere of medical negligence the obligation may for instance also be
satised if the legal system aords victims a remedy in the civil courts, either
alone or in conjunction with a remedy in the criminal courts, enabling any
responsibility of the doctors concerned to be established and any appropriate civil
redress, such as an order for damages and/or for the publication of the decision,
to be obtained. Disciplinary measures may also be envisaged.
A requirement of promptness and reasonable expedition is implicit in this con-
text. Even where there may be obstacles or diculties which prevent progress in
an investigation in a particular situation, a prompt response by the authorities is
vital in maintaining public condence in their adherence to the rule of law and in
preventing any appearance of collusion in or tolerance of unlawful acts. The same
applies to Article 2 cases concerning medical negligence. The States obligation under
Article 2 of the Convention will not be satised if the protection aorded by
domestic law exists only in theory: above all, it must also operate eectively in practice
and that requires a prompt examination of the case without unnecessary delays.
Lastly, apart from the concern for the respect of the rights inherent in Article 2
of the Convention in each individual case, more general considerations also call
for a prompt examination of cases concerning death in a hospital setting. Knowl-
edge of the facts and of possible errors committed in the course of medical care
are essential to enable the institutions concerned and medical sta to remedy the
potential deciencies and prevent similar errors. The prompt examination of such
cases is therefore important for the safety of users of all health services.
The Court notes that the fact that the applicants sons condition started signi-
cantly to deteriorate in the hospital and that his death was possibly related to the
medical treatment he received has not been disputed either before the Court or in the
domestic proceedings. It further observes that the applicants alleged that their sons
death was a result of negligence on the part of the doctor. It follows that the State
was under a duty to ensure that the proceedings instituted with regard to the death
complied with the standards imposed by the procedural obligation of Article 2 of
the Convention. The applicants used two legal remedies, criminal and civil, with
a view to establishing the circumstances of and liability for their sons death.
The Court considers that the excessive length of the criminal proceedings, and
in particular the investigation, could not be justied by either the conduct of the
applicants or the complexity of the case.
The civil proceedings, instituted on 6 July 1995, are, more than 13 years later,
still pending before the Constitutional Court. Notably, although those proceed-
ings were stayed for three years and seven months pending the outcome of the
criminal proceedings, they were in fact already at a standstill for two years before
that. Indeed, even after the criminal proceedings were discontinued in October
2000, it took the domestic courts a further ve years and eight months to rule on
the applicants civil claim.
288 Selected Legislation and Jurisprudence / European Journal of Health Law 16 (2009) 281-292

The Court would accept that the requests for a change of venue and for certain
judges to stand down delayed the proceedings to a degree. In the present case,
however, it considers that the delays that occurred after the stay was lifted were in
many instances not reasonable in the circumstances. Certain hearings for example
were delayed by up to nine or ten months simply due to a change of venue or as a
result of the case taken over by yet another judge. It is worth noting that the sixth
and nal judge concluded the rst-instance proceedings in less than three months.
Lastly, the Court considers it unsatisfactory for the applicants case to have
been dealt with by at least six dierent judges in a single set of rst-instance pro-
ceedings. While it accepts that the domestic courts are better placed to assess
whether an individual judge is able to sit in a particular case, it nevertheless notes
that a frequent change of the sitting judge will undoubtedly impede the eective
processing of the case. It observes in this connection that it is for the State to
organise its judicial system in such a way as to enable its courts to comply with
the requirements of the Convention, including those enshrined in the procedural
obligation of Article 2.
Having regard to the above background, the Court considers that the domestic
authorities failed to deal with the applicants claim arising out of their sons death
with the level of diligence required by Article 2 of the Convention. Consequently,
there has been a violation of Article 2 in its procedural aspect.

For these reasons, the Court, holds by fteen votes to two that there has been a
violation of Article 2 of the Convention in its procedural limb and by sixteen
votes to one that the respondent State is to pay the applicants 7,540 in respect
of non-pecuniary damage and 4,039 in respect of costs and expenses.

Concurring opinion of Judge Lorenzen; concurring opinion of Judge Zupani;


concurring opinion of Judge Zagrebelsky joined by Judges Rozakis, Cabral Barreto,
Spielmann and Saj; joint dissenting opinion of Judges Bratza and Trmen.

ECHR 2009/12 Case of Women on Waves and others v. Portugal, 3 February 2009,
no. 31276/05 (Second Section)

The facts
The applicants are the Dutch foundation Women on Waves and two Portuguese
associations, Clube Safo and No te Prives (Group for the defence of sexual
rights). The three applicant associations are particularly active in promoting
debate on reproductive rights.
In 2004 Women on Waves chartered the ship Borndiep and sailed towards
Portugal after being invited by the two other applicant associations to campaign
in favour of the decriminalisation of abortion. Meetings on the prevention of
Selected Legislation and Jurisprudence / European Journal of Health Law 16 (2009) 281-292 289

sexually transmitted diseases, family planning and the decriminalisation of abor-


tion were scheduled to take place on board from 30 August to 12 September 2004.
On 27 August 2004 the ship was banned from entering Portuguese territorial
waters by a ministerial order, on the basis of maritime law and Portuguese health
laws, and its entry was blocked by a Portuguese warship.
On 6 September 2004 the Administrative Court rejected a request by the
applicant associations for an order allowing the ships immediate entry. The court
took the view that the associations appeared to be intending to give Portuguese
women access to abortion procedures and medicines that were illegal in Portugal.
The applicant associations appealed against that decision but without success.
They subsequently applied to the Supreme Administrative Court, which found
that the matter in dispute was not of sucient legal or social signicance to jus-
tify its intervention.
According to Women on Waves, a number of demonstrations in support of the
three associations took place in Figueira da Foz and Lisbon and the situation
attracted considerable media attention.

The law
Alleged violation of Article 10 of the Convention

The applicant associations complained that the refusal to allow the Borndiep to
enter Portuguese territorial waters violated Articles 10 of the Convention, that
protects the freedom of expression.

While the Court acknowledges the legitimate aims pursued by the Portuguese
authorities, namely the prevention of disorder and the protection of health, it
reiterates that pluralism, tolerance and broadmindedness towards ideas that
oend, shock or disturb are prerequisites for a democratic society.
The Court points out that the right to freedom of expression includes the
choice of the form in which ideas are conveyed, without unreasonable interfer-
ence by the authorities, particularly in the case of symbolic protest activities. In
this case, the restrictions imposed by the authorities have aected the substance
of the ideas and information imparted. The Court notes that the choice of the
Borndiep for the events planned by the applicant associations has been crucially
important to them and in line with the activities which Women on Waves have
carried out for some time in other European States.
The Court observes that the applicant associations has not trespassed on pri-
vate land or publicly owned property, and notes the lack of suciently strong
evidence of any intention on their part to deliberately breach Portuguese abortion
legislation. It reiterates that freedom to express opinions in the course of a peace-
ful assembly can not be restricted in any way, so long as the person concerned
does not commit any reprehensible acts.
290 Selected Legislation and Jurisprudence / European Journal of Health Law 16 (2009) 281-292

The Court considers that in seeking to prevent disorder and protect health, the
Portuguese authorities could have resorted to other means that were less restric-
tive of the applicant associations rights, such as seizing the medicines on board.
It highlights the deterrent eect for freedom of expression in general of such a
radical act as dispatching a warship.
Therefore there has been a violation of Article 10 as the interference by the
authorities has been disproportionate to the aims pursued.

For these reasons, the Court, unanimously holds that there has been a violation
of Article 10 of the Convention; and that the respondent State is to pay to each
applicant 2,000 in respect of non-pecuniary damage and 3,309.40 in respect
of costs and expenses.

ECHR 2009/13 Case of K.H. and others v. Slovakia, 28 April 2009, no. 32881/04
(Fourth Section)

The facts
The applicants are eight female Slovakian nationals of Roma ethnic origin. They
were treated in two hospitals in eastern Slovakia during their pregnancies and
deliveries, following which none of them could conceive a child again despite
their repeated attempts. The applicants suspected that the reason for their infertil-
ity might be that a sterilisation procedure was performed on them during their
caesarean delivery by medical personnel in the hospitals concerned.
In order to obtain a medical analysis of the reasons for their infertility and pos-
sible treatment, the applicants authorised their lawyers to review and photocopy
their medical records as potential evidence in future civil proceedings for dam-
ages, and to ensure that such documents and evidence were not destroyed or lost.
The lawyers made two attempts, in August and September 2002 respectively, to
obtain photocopies of the medical records, but were not allowed to do so by the
hospitals management.
The applicants sued the hospitals concerned, asking the courts to order them to
release the medical records to the applicants authorised legal representatives and
to allow the latter to obtain photocopies of the documents included in the records.
In June 2003, the courts ordered the hospitals to permit the applicants and
their authorised representatives to consult the medical records and to make hand-
written excerpts thereof, but dismissed their request to photocopy the documents
with a view to preventing their abuse.
A subsequent constitutional complaint was rejected by the Constitutional
Court. It found no appearance of a violation of Article 6 1 of the Convention.
As to the alleged violation of Article 8 of the Convention, the Constitutional
Court held that the courts had correctly applied the Health Care Act of 1994 and
Selected Legislation and Jurisprudence / European Journal of Health Law 16 (2009) 281-292 291

that a fair balance had been struck between the conicting 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.
Finally, seven applicants were able to access their les and to make photocopies
of them in accordance with the newly introduced Health Care Act of 2004. As
regards the eighth applicant, the 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.

This summary is restricted to the issues raised under Article 8 of the Convention

The law
Alleged violation of Article 8 of the Convention

The applicants complained that they had been unable to obtain photocopies of
their medical records under the Health Care Act 1994. They relied on Article 8
of the Convention, which protects the right to respect for private and family life.

The complaint in issue concerns the exercise by the applicants of their right of
eective 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.
The Court reiterates that, in addition to the primarily negative undertakings in
Article 8 of the Convention, there may be positive obligations inherent in eec-
tive respect for ones private life.
Bearing in mind that the exercise of the right under Article 8 to respect for
ones private and family life must be practical and eective, 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 les.
It can be accepted that it is for the le holder to determine the arrangements
for copying personal data les 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 specically justify a request to be provided with a copy of their per-
sonal data les. It is rather for the authorities to show that there are compelling
reasons for refusing this facility.
The applicants in the present case obtained judicial orders permitting them to
consult their medical records in their entirety, but they were not allowed to make
copies of them under the Health Care Act 1994. The point to be determined
by the Court is whether in that respect the authorities of the respondent State
complied with their positive obligation and, in particular, whether the reasons
invoked for such a refusal were suciently compelling to outweigh the Article 8
right of the applicants to obtain copies of their medical records.
292 Selected Legislation and Jurisprudence / European Journal of Health Law 16 (2009) 281-292

Although it was not for the applicants to justify the requests for copies of their
own medical les, the Court would nevertheless underline that the applicants
considered that the possibility of obtaining exclusively handwritten excerpts of
the medical les did not provide them with eective access to the relevant docu-
ments concerning their health. The original records, which could not be repro-
duced 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 aecting their reproductive status.
The Court also observes that the applicants considered it necessary to have all
the documentation in the form of photocopies so that an independent expert,
possibly abroad, could examine them, and also in order to safeguard against the
possible inadvertent destruction of the originals are of relevance. As to the latter
point, it cannot be overlooked that the medical le of one of the applicants had
actually been lost.
The national courts mainly justied the prohibition on making copies of med-
ical records by the need to protect the relevant information from abuse. How-
ever, the Court does not see how the applicants, who had in any event been given
access to the entirety of their medical les, could abuse information concerning
their own persons by making photocopies of the relevant documents. The risk of
such abuse could have been prevented by means other than denying copies of the
les 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 les.
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 authorized by them to make copies of medical records is in line with the
above conclusion. That legislative change, although welcomed, cannot aect the
position in the case under consideration.
There has therefore been a failure to fulll the positive obligation to ensure
eective respect for the applicants private and family lives in breach of Article 8
of the Convention.

For these reasons, the Court, unanimously holds, inter alia, that there has been a
violation of Article 8 of the Convention; and that the respondent State is to pay
to each applicant 3,500 in respect of non-pecuniary damage and 8,000 jointly
to all applicants in respect of costs and expenses.

Joseph Dute
Faculty of Law
University of Amsterdam
The Netherlands