Z v. FINLAND

• Judgment Date: 25 February 1997
• ECLI: ECLI:CE:ECHR:1997:0225JUD002200993
• Respondent State: Finlandia
• Date: 25 February 1997
• Application Number: 22009/93
• Court: Chamber (European Court of Human Rights)
• Counsel: N/A
• Applied Rules: 8;8-2;8-1;13;41
• Official Gazette Publication: [object Object]

COURT (CHAMBER)

CASE OF Z v. FINLAND

(Application no. 22009/93)

JUDGMENT

STRASBOURG

25 February 1997

In the case of Z v. Finland¹,

The European Court of Human Rights, sitting, in accordance with Article 43 (art. 43) of the Convention for the Protection of Human Rights and Fundamental Freedoms ("the Convention") and the relevant provisions of Rules of Court B², as a Chamber composed of the following judges:

Mr R. Ryssdal, President,

Mr F. Gölcüklü,

Mr L.-E. Pettiti,

Mr C. Russo,

Mr J. De Meyer,

Mr R. Pekkanen,

Mr G. Mifsud Bonnici,

Mr J. Makarczyk,

Mr B. Repik,

and also of Mr H. Petzold, Registrar, and Mr P.J. Mahoney, Deputy Registrar,

Having deliberated in private on 31 August 1996 and 25 January 1997,

Delivers the following judgment, which was adopted on the last-mentioned date:

PROCEDURE

1. The case was referred to the Court by the European Commission of Human Rights ("the Commission") on 25 January 1996, within the three-month period laid down by Article 32 para. 1 and Article 47 of the Convention (art. 32-1, art. 47). It originated in an application (no. 22009/93) against the Republic of Finland lodged with the Commission under Article 25 (art. 25) by a Finnish national, Mrs Z, on 21 May 1993.

The Commission’s request referred to Articles 44 and 48 (art. 44, art. 48) and to the declaration whereby Finland recognised the compulsory jurisdiction of the Court (Article 46) (art. 46). The object of the request was to obtain a decision as to whether the facts of the case disclosed a breach by the respondent State of its obligations under Articles 8 and 13 of the Convention (art. 8, art. 13).

2. In response to the enquiry made in accordance with Rule 35 para. 3 (d) of Rules of Court B, the applicant stated that she wished to take part in the proceedings and designated the lawyers who would represent her (Rule 31).

3. The Chamber to be constituted included ex officio Mr R. Pekkanen, the elected judge of Finnish nationality (Article 43 of the Convention) (art. 43), and Mr R. Ryssdal, the President of the Court (Rule 21 para. 4 (b)). On 8 February 1996, in the presence of the Registrar, the President drew by lot the names of the other seven members, namely Mr F. Gölcüklü, Mr L.-E. Pettiti, Mr B. Walsh, Mr C. Russo, Mr J. De Meyer, Mr G. Mifsud Bonnici and Mr B. Repik (Article 43 in fine of the Convention and Rule 21 para. 5) (art. 43). Subsequently Mr J. Makarczyk, substitute judge, replaced Mr Walsh, who was unable to take part in the further consideration of the case (Rules 22 para. 1 and 24 para. 1).

4. As President of the Chamber (Rule 21 para. 6), Mr Ryssdal, acting through the Registrar, consulted the Agent of the Finnish Government ("the Government"), the applicant’s lawyer and the Delegate of the Commission on the organisation of the proceedings (Rules 39 para. 1 and 40). Pursuant to the order made in consequence on 25 March 1996, the Registrar received the applicant’s memorial on 29 May 1996 and the Government’s memorial on 31 May 1996. On 5 July 1996 the Secretary to the Commission indicated that the Delegate would submit his observations at the hearing.

5. On various dates between 5 July and 9 August 1996 the Commission produced a number of documents from the proceedings before it, as requested by the Registrar on the President’s instructions.

6. On 20 June 1996 the Registrar received from the Government a request to hold the hearing set down for 29 August 1996 in camera. The President invited the Delegate of the Commission and the applicant to comment on the Government’s request. On 24 June 1996, the Registrar received the applicant’s observations on the matter.

In the light of the observations submitted by the Government and the applicant and the sensitive nature of the case, the Chamber decided on 26 June 1996 that the hearing should be held in camera, being satisfied that there were exceptional circumstances for the purposes of Rule 18 warranting a derogation from the principle of publicity applying to the Court’s hearings.

7. In accordance with the President’s and the Chamber’s decisions, the hearing took place in camera in the Human Rights Building, Strasbourg, on 29 August 1996. The Court had held a preparatory meeting beforehand.

There appeared before the Court:

(a) for the Government

Mr H. Rotkirch, Director of Legal Affairs,

Ministry of Foreign Affairs, Agent,

Mr A. Kosonen, Legal Adviser,

Ministry of Foreign Affairs, co-Agent,

Mr I. Liukkonen, Legal Adviser, Ministry of Justice,

Mr J. Tenneberg, Legal Adviser, National Board

of Medical Affairs, Advisers;

(b) for the Commission

Mr P. Lorenzen, Delegate;

(c) for the applicant

Mr M. Fredman, asianaja, advokat,

Mr M. Scheinin, Associate Professor of Law,

University of Helsinki, Counsel.

The Court heard addresses by Mr Lorenzen, Mr Fredman, Mr Scheinin, Mr Rotkirch and Mr Kosonen, and also replies to its questions.

8. On 1 October 1996, the Government supplied the Court with further particulars in reply to a question put at the hearing.

AS TO THE FACTS

I. Particular circumstances of the case

A. Introduction

9. The applicant is a Finnish national, resident in Finland, and was at the time of the events which gave rise to her complaints under the Convention married to X, who was not Finnish. They divorced on 22 September 1995. They are both infected with the human immunodeficiency virus (HIV).

10. On 10 March 1992 the Helsinki City Court (raastuvanoikeus, rådstuvurätten) convicted X and sentenced him to a suspended term of imprisonment for rape on O. on 12 December 1991. The City Court held the trial in camera and ordered that the documents submitted in the case remain confidential for a certain period.

11. On 19 March 1992 X was informed of the results of a blood test performed on 6 March 1992, indicating that he was HIV-positive.

B. Further complaints of sexual offences lodged against X

12. In early March 1992, following a complaint of a sexual offence lodged by M., the police opened an investigation into attempted manslaughter, suspecting X of having deliberately subjected M. to a risk of infection with HIV on 1 March.

According to the facts as established by the Commission, during a police interview on 5 March 1992 M. identified X as the perpetrator and the police informed her that X’s spouse, the applicant, was HIV-positive. On 10 April 1992, the police advised M. that X was also infected.

At the hearing before the Court the Government disputed the Commission’s finding that the police had informed M. that the applicant was an HIV carrier. The Delegate replied that the finding had been based on corroborative evidence in the police investigation record and the minutes of the ensuing proceedings before the City Court (see paragraph 19 below).

13. M.’s boyfriend T. met the applicant in mid-March 1992 and asked her whether her husband was an HIV carrier. On 6 April 1992 T. telephoned her and cited passages from confidential court documents relating to the trial mentioned in paragraph 10 above.

On 14 April T. was interviewed by the police as to the content of this conversation.

14. On 7 April 1992 the police attempted to interview the applicant but, as she was married to X, she relied on her right under Finnish law not to give evidence against her spouse (chapter 17, Article 20 para. 1, of the Code of Judicial Procedure (oikeudenkäymiskaari, rättegångsbalk)).

15. On 22 April 1992 the public prosecutor charged X with sexual assault on M. On 20 May 1992 M. brought a charge against X of attempted manslaughter.

16. On 10 September 1992, following complaints of rape lodged by P.-L. and P., X was arrested and detained on remand, on suspicion of attempted manslaughter by having raped the complainants earlier that month and thereby deliberately subjected them to a risk of HIV infection.

17. On 14 September 1992 the police interviewed the applicant but she again refused to give evidence against her spouse. She feared that the documents in the case, including any statement she made, would not remain confidential.

18. On 18 September 1992 R. lodged a complaint with the police against X for rape committed on 19 December 1991. The police officer who recorded the complaint added to the record a statement that the applicant had already been found to be HIV-positive in 1990.

The Government submitted at the Court’s hearing that it was R. who had told this to the police.

The police opened an investigation into attempted manslaughter in this case also.

On 7 October and 2 December 1992 and 24 March 1993, the public prosecutor read out in court charges against X of attempted manslaughter in respect of offences committed against M. on 1 March 1992, against P. on 10 September 1992 and against P.-L. on 5 and 6 September 1992. Such charges were also brought by P.-L. on 16 December 1992 and by R. on 19 May 1993 in relation to offences committed respectively on 31 August 1992 and 19 December 1991.

C. Orders obliging the applicant’s doctors and psychiatrist to give evidence

19. On 22 April 1992, at the City Court’s first hearing, held in public, X refused to reply to a question put by M.’s counsel as to whether the applicant was also an HIV carrier.

At a further...