ПОСТАНОВЛЕНИЕ Европейского суда по правам человека от 25.02.1997"z ПРОТИВ ФИНЛЯНДИИ" [рус. (извлечение), англ.]

1993, Dr K., who had also treated the applicant, was, despite his objections, required to give evidence as a witness for the prosecution and to disclose information about the applicant. He did so.
27. On 6 February 1993 the police interviewed Dr S.V. as an expert. He provided them with general information on HIV infection and contamination.
28. On 10 February 1993 the public prosecutor requested the police to interview the applicant"s doctors as witnesses in the investigation into the charges against X of attempted manslaughter (see paragraph 18 above). However, since all the doctors concerned refused, the matter had to be referred to the City Court.
29. Despite his renewed objections, senior doctor L. was again heard as a prosecution witness at the City Court"s hearing of 3 March 1993. He once again disclosed information about the applicant. Before giving evidence he read out a letter dated 23 February 1993 which the applicant had sent him. It stated:
"... The case concerns criminal charges against my husband which are considered to outweigh a doctor"s obligation and right to respect secrecy. It seems to me that you have been called to appear as a witness because I myself have invoked my right ... to refuse to give evidence. In your capacity as a doctor you are therefore likely to be asked questions which I, as X"s spouse, have the right to refuse to reveal. The information which you have emanates from me and has been obtained by you because it has been my understanding that it would remain confidential ... [N]or could I have imagined that [such] information could be used for the purpose of criminal proceedings in which my husband is facing charges. As I see it, the hearing of you as a witness is merely aimed at circumventing my lawful right to refuse to give evidence against my husband ...
... I therefore request you to refer to these points, when you are being asked to give evidence in matters which concern only me. It is my opinion that you should not be obliged to give evidence in those matters and that the charges should be dealt with in such a way that I am not in any way forced to take part in the establishment of the [facts]. [I] am under no obligation to do so ..."
30. In the course of three hearings on 17 March, 7 April and 5 May 1993, the City Court heard evidence from the applicant"s psychiatrist, Dr K.R., and a number of medical doctors who had treated her, namely Drs V., S.-H., S., K., T., R. and apparently also Dr J.S. It also heard Dr S.V., who had interviewed Z for research purposes. The prosecution had called them as witnesses and the court had ordered them to give evidence, although they had objected to doing so.
At the hearing on 17 March, Dr D. confirmed that a blood test performed in August 1990 had shown that the applicant was HIV-positive.
At the hearing on 5 May 1993 the applicant agreed to give evidence since the matters which related to her had already been dealt with by the City Court in other ways. In her evidence she stated amongst other things that she had not been infected with HIV by X.
D. Seizure of medical records and their inclusion
in the investigation file
31. On 8 and 9 March 1993 the police carried out a search at the hospital where the applicant and X had occasionally been treated. The police seized all the records concerning the applicant and appended copies of these to the record of the investigation concerning the charges against X of attempted manslaughter. These measures had been ordered by the prosecution. After photocopying the records the police returned them to the hospital.
The seized records comprised some thirty documents including the following statements:
25 September 1990: [The applicant was] found to be HIV-positive at the beginning of the autumn of 1990. [She] guesses that she was contaminated at the end of 1989 ... [She] is married to a [foreign] citizen, whom she thinks is [HIV]-negative.
5 June 1991: ... [The applicant"s husband] completely denies that he might have an HIV infection ...
7 June 1991: ... According to [the applicant], [her] husband probably has an HIV infection too but [he] has not gone to be tested ...
23 December 1991: ... [The applicant"s husband] has not gone for HIV tests and is of the opinion that he is not a carrier of the virus ..."
32. The police also seized results from a large number of laboratory tests and examinations concerning matters other than the existence of HIV in the applicant"s blood, including information about her previous illnesses, her mental state and a survey into her quality of life based on a self-assessment.
On 10 March 1993 the City Court decided to include the copies of the seized records in its case file. On the same day it heard Dr S.V. as an expert called by the prosecution.
E. Conviction of X by the City Court and appeals
to the Helsinki Court of Appeal
33. On 19 May 1993 the City Court, amongst other things, convicted X on three counts of attempted manslaughter committed on 1 March, 31 August and 10 September 1992 but dismissed the charge of attempted manslaughter for the offence committed on 19 December 1991 and, as regards the latter, convicted him of rape instead. The City Court sentenced him to terms of imprisonment totalling seven years.
The City Court published the operative part of the judgment, an abridged version of

Международное законодательство »
Читайте также