I incorrectly predicted that there's no violation of human rights in SIDOROVA v. RUSSIA.

Judgment

THIRD SECTION

CASE OF SIDOROVA v. RUSSIA

(Application no. 35722/15)

JUDGMENT

STRASBOURG

28 May 2019

This judgment is final but it may be subject to editorial revision. In the case of Sidorova v. Russia,
The European Court of Human Rights (Third Section), sitting as a Committee composed of:
Helen Keller, President,Pere Pastor Vilanova,María Elósegui, judges,and Stephen Phillips, Section Registrar,
Having deliberated in private on 7 May 2019,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1. The case originated in an application (no. 35722/15) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Russian national, Ms Lidiya Pavlovna Sidorova (“the applicant”), on 2 July 2015. 2. The applicant was represented by Ms I. Kulakova, a lawyer practising in Dimitrovgrad. The Russian Government (“the Government”) were represented initially by Mr G. Matyushkin, former Representative of the Russian Federation to the European Court of Human Rights, and then by his successor in that office, Mr M. Galperin. 3. On 13 March 2017 notice of the complaint concerning the alleged interference with the applicant’s private life was given to the Government and the remainder of the application was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court. THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
4. The applicant was born in 1955 and lives in Dmitrovgrad. 5. Between 2012 and 2014 the applicant lodged numerous complaints with the local police department concerning the allegedly unauthorised use of the plot of land near the block of flats where her family resided. She also alleged that there had been a number of assassination attempts planned against her. 6. On 15 January 2014 the head of the inter-municipal police department forwarded the following letter to the Psychiatric and Narcological Service:
“Following receipt of numerous complaints, the [police department] asks you to examine (check) [the applicant] ... at her place of residence. Her behaviour is inappropriate. She constantly talks about conspiracies against her. Complaints lodged by residents and entrepreneurs about her aggressive behaviour have grown in number. [The applicant] might cause harm to others.”
7. On 28 and 29 January 2014 a psychiatrist, Sav., questioned the applicant’s neighbours, asking them if they had observed any strange behaviour on the applicant’s part. 8. On 30 January 2014 a psychiatrist visited the applicant at her place of residence. 9. On 31 January 2014 the psychiatrist informed the police that the applicant did not have any psychiatric disorders. 10. On 12 March 2014, in response to the applicant’s complaint, the Dimitrovgrad Town Court found the psychiatrist’s actions unlawful. The court established that, contrary to the applicable legislation, the psychiatrist had failed to obtain the applicant’s consent to a psychiatric examination and that the applicant had objected to such an examination. 11. On 17 March 2014 the applicant asked the court to find the police’s decision to have her assessed by the psychiatrist unlawful. She considered that the decision had been arbitrary and that it had amounted to an unjustified interference with her private life. 12. On 29 April 2014 the Town Court dismissed the applicant’s complaint. The court found that the actions of the police had had a basis in law. The court interpreted the letter of 15 January 2014 issued by the police department as a request for information from the psychiatrist as to whether the applicant suffered from any mental illness. It further reasoned that the police had not asked the psychiatric service to examine the applicant. In 2012 the police had received numerous complaints from the applicant, who had alleged that she had been persecuted by unknown persons, and complaints from owners and employees of concession stands alleging that the applicant had destroyed their property and had disrupted their activities by making scenes. The police had conducted an inquiry, which did not confirm the applicant’s allegations. Accordingly, the police had decided to obtain information about the applicant’s mental condition. Lastly, the court reasoned that the fact that, in response to the police’s request for information, the psychiatric service had examined the applicant unlawfully had no bearing on the lawfulness of the police’s actions. 13. On 22 July 2014 the Ulyanovsk Regional Court upheld the judgment of 29 April 2014 on appeal. 14. On 17 December 2014 the Regional Court refused to grant the applicant leave to lodge a cassation appeal. 15. On 26 March 2015 the Supreme Court of the Russian Federation issued a similar decision in response to the applicant’s application to lodge a cassation appeal. II. RELEVANT DOMESTIC LAW
A. Federal Police Act in force since 7 February 2011, as amended
16. The Federal Police Act allows disclosure of personal data in order to prevent or detect criminal or administrative offences. The federal legislation, however, may provide for a special procedure governing such disclosure in the sphere of public health (section 13(1) (4)). B. Federal Public Health Act in force since 21 November 2011, as amended
17. Information concerning medical consultation, an individual’s health or diagnosis and other data obtained in the course of medical examination or treatment shall be considered confidential (a medical secret) (section 13(1) of the Federal Public Health Act). Investigating authorities may request disclosure of confidential medical information, without the consent of the individual concerned, in connection with an ongoing investigation (Section 13(4)(3) of the Federal Public Health Act). C. Federal Mental Health Act in force since 2 July 1992, as amended
18. Disclosure of information concerning mental health or the results of a psychiatric examination must be expressly allowed by federal legislation (Section 4 of the Mental Health Act). THE LAW
I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
19. The applicant complained that the police’s actions in response to her grievances were in contravention of Article 8 of the Convention, which, in so far as relevant, 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.”
20. The Government contested that argument. The Government considered that the police’s request for information concerning the applicant’s health had been in full compliance with domestic legislation. The police had acted in response to the numerous complaints lodged by the applicant and the complaints they had received from other individuals complaining about the applicant’s behaviour. The applicant’s allegations had been examined by the domestic courts, which had found the police’s actions lawful. The aim of the police had been to establish whether the applicant suffered from a mental illness in order to respond correctly and objectively to the complaints lodged by entrepreneurs who worked near the applicant’s place of residence. The head of the police department had not asked the psychiatric service to examine the applicant. He had merely asked for information concerning her state without citing any legal provisions setting forth the grounds for such examination. The letter of 15 January 2014 had not contained the phrase “psychiatric examination” and the letter should not have been construed as a request for an examination. The fact that the psychiatrists had decided, in response to the letter, to examine the applicant had no bearing as to the lawfulness of the actions of the police. 21. The applicant maintained her complaint. She submitted that the psychiatrists had acted in response to the letter they had received from the police. Neither the police nor the Government had shown that there had been any actual complaints about the applicant’s behaviour. The interference with her private life had neither been in accordance with law nor necessary in a democratic society. The head of the police department had acted in contravention of the Federal Police Act, which contained an exhaustive list of the circumstances allowing the collection of personal data by the police. The applicant’s situation had not fallen within the ambit of the relevant provisions. The applicant had not been a threat to national security or public order or to the economic well-being of the country. Nor had the authorities been in possession of any information to the contrary. The aim of the police had been to put an end to the applicant’s activities. For years she had been a human rights activist. She had lodged many complaints about inactivity and corruption of the municipal authorities acting in the interests of the persons living in the area. As regards the wording of the letter of 15 January 2014, the applicant submitted that, according to the Ozhegov Dictionary of the Russian Language, the term “to examine (check) (проверить)” meant
“1. To ascertain the accuracy of something, to inspect for the purposes of supervision or control. 2. To subject to testing in order to find out something.”
The request “to examine (check)” could not be construed as “to provide information”. The authorities had deliberately distorted the actual and legal meaning of the police’s request. A. Admissibility
22. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits
23. The Court observes that the parties are not in agreement as regards the true meaning of the letter that the head of the police department sent to the psychiatric service. While the Government argued that the police had only asked the psychiatric service for information about the applicant’s medical condition, the applicant insisted that the police had also ordered the psychiatric service to subject her to an examination. The Court notes, in this respect, that the issue of the request for the applicant’s psychiatric examination, if any, is subsumed by the issue of the collection of personal data by the police. Accordingly, the Court does not consider it necessary, in the circumstances of the case, to establish whether the psychiatrist attempted to examine the applicant of his own volition or upon the order of the police. It will focus on the more general issue as to whether the collection of the applicant’s medical data by the police was in compliance with the requirements of Article 8 of the Convention. 1. Whether Article 8 applies
24. The Court notes from the outset that the information collected by the police concerned the applicant’s mental condition. It reiterates that such information by its very nature constitutes highly sensitive personal data regardless of whether it was indicative of a particular medical diagnosis (compare Surikov v. Ukraine, no. 42788/06, § 75, 26 January 2017). Accordingly, collection of such information by the State authorities falls within the ambit of Article 8 of the Convention (ibid.). 2. Whether there was interference
25. The Court further notes, and the Government do not argue to the contrary, that the collection of the applicant’s medical data by the police constituted an interference with her right to respect for her private life as secured by Article 8 § 1 of the Convention. It remains to be ascertained whether the interference was justified in the light of paragraph 2 of that Article. 3. Whether the interference was justified
(a) In accordance with law
26. The Court accepts the Government’s argument that the police’s actions had a basis in domestic law. The applicable legislation allows collection of personal data in order to prevent or detect criminal and administrative offences (see paragraphs 16-18 above). The Court also notes that it is not disputed by the applicant that the law in question was “accessible”. 27. The Court further takes note of the applicant’s argument that the head of the police department acted arbitrarily and that he collected her medical data in contravention of the applicable laws. However, the Court considers that this question is closely related to the broader issue of whether the interference was necessary in a democratic society. In view of its analysis in paragraphs 29-36 below, the Court does not find it necessary to decide whether the wording of the applicable legislation provisions met the “quality of law” requirements of Article 8 § 2 of the Convention. (b) Legitimate aim
28. While the Court does not consider the Government’s argument that the police had collected the applicant’s medical data in order to correctly respond to the complaints allegedly lodged against her to be beyond dispute, as with its finding in paragraphs 26-27 above, the Court considers that, in the circumstances of the case, it is not required to rule on the issue. To the extent that it is relevant to the assessment of the proportionality of the interference, this matter will be addressed in paragraphs 29-36 below (compare Christian Democratic People’s Party v. Moldova, no. 28793/02, §§ 42-54, ECHR 2006‐II, and Avilkina and Others v. Russia, no. 1585/09, § 40, 6 June 2013). (c) Necessary in a democratic society
29. In determining whether the impugned measures were “necessary in a democratic society”, the Court will consider whether, in the light of the case as a whole, the reasons adduced to justify the said measures were relevant and sufficient and whether the measures were proportionate to the legitimate aims pursued (see, for example, Peck v. the United Kingdom, no. 44647/98, § 76, ECHR 2003‐I). 30. The Court reiterates that the protection of personal data, including medical information, is of fundamental importance to a person’s enjoyment of the right to respect for his or her private and family life guaranteed by Article 8 of the Convention. Respecting the confidentiality of health data is a vital principle in the legal systems of all the Contracting Parties to the Convention. The disclosure of such data may seriously affect a person’s private and family life, as well as their social and employment situation, by exposing them to opprobrium and the risk of ostracism (see Z v. Finland, 25 February 1997, §§ 95-96, Reports of Judgments and Decisions 1997-I). Nevertheless, the interests of a patient and the community as a whole in protecting the confidentiality of medical data may be outweighed by the interest in investigation and prosecution of crime and in the publicity of court proceedings, where such interests are shown to be of even greater importance (see Z v. Finland, cited above, § 97). 31. The Court further reiterates that in cases concerning the disclosure of personal data, it has recognised that a margin of appreciation should be left to the competent national authorities in striking a fair balance between the relevant conflicting public and private interests. However, this margin goes hand in hand with European supervision (see Funke v. France, judgment of 25 February 1993, Series A no. 256-A, p. 24, § 55) and the scope of this margin depends on such factors as the nature and seriousness of the interests at stake and the gravity of the interference (see Z v. Finland, cited above, § 99). 32. Turning to the circumstances of the present case, the Court observes that the applicant was neither a suspect nor an accused in any criminal investigation. Nor did the Government produce any material pertaining to any administrative inquiry conducted in response to the alleged complaints against the applicant. In fact, the Government did not submit a single copy of those complaints pertaining to the relevant time. In any event, as indicated in the judgment in the applicant’s case, any such complaints would have been brought to the police’s attention in 2012 and therefore, in the Court’s opinion, could hardly justify the collection of the applicant’s medical data in 2014. Accordingly, regard being had to the materials submitted, the Court does not discern any pressing social need for requesting disclosure of the applicant’s confidential medical information. It therefore considers that the means employed by the head of the police department in conducting the inquiry in response to the alleged complaints were not commensurate with the aim pursued. 33. In this connection the Court does not lose sight of the fact that there were options, other than seeking disclosure of confidential medical information, available to the police to follow up on the complaints lodged, if any. In particular, they could have tried to obtain the applicant’s consent to the disclosure and/or to question her in relation to the matter. Nevertheless, the police chose to seek disclosure of confidential medical information without giving the applicant any notice or an opportunity to either object or acquiesce to the request. 34. The Court further observes that the applicant’s grievances were reviewed by national courts at two levels of jurisdiction. Referring to the power of the police to collect personal data, those courts dismissed the applicant’s claims. The Court discerns no mention in the text of the judgments of any efforts by the national authorities to strike a fair balance between the applicant’s right to respect for her private life and the police’s activities aimed at protecting public order. Lastly, the Court cannot overlook the fact that the domestic courts did not provide any explanation as to their conclusion that the phrase “asks ... to examine [the applicant]” actually meant “asks for information concerning [the applicant’s] state”. 35. The above considerations are sufficient for the Court to conclude that the collection by the police of confidential medical information concerning the applicant was not accompanied by sufficient safeguards to prevent disclosure inconsistent with the respect for the applicant’s private life guaranteed under Article 8 of the Convention. 36. It follows that there has been a violation of Article 8 of the Convention arising from the collection of the applicant’s medical records by the police for the purposes of unidentified inquiries. II. APPLICATION OF ARTICLE 41 OF THE CONVENTION
37. 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
38. The applicant claimed 5,000 euros (EUR) in respect of non‐pecuniary damage. 39. The Government considered that the applicant’s claims should be dismissed given that there had been no violation of her Convention rights. They further submitted that the applicant’s claims were excessive and unreasonable and inconsistent with the Court’s case-law on the issue. 40. The Court grants the applicant’s claims in full and awards her EUR 5,000 in respect of non-pecuniary damage. B. Costs and expenses
41. The applicant also claimed 78,000 Russian roubles (RUB) for the costs and expenses incurred before the domestic courts and before the Court. In particular, she claimed RUB 13,000 in respect of the legal fee paid for legal representation in the domestic proceedings, RUB 50,000 in respect of the legal fee paid to her representative in the proceedings before the Court and RUB 15,000 in respect of the translation fee. In support of her claims she submitted copies of the invoices. 42. The Government submitted that the applicant had failed to submit copies of contracts with her representatives. They further considered that the claim for costs and expenses in the domestic proceedings was not relevant to the present case. 43. Regard being had to the documents in its possession and to its case‐law, the Court considers it reasonable to award the sum of EUR 1,140 covering costs under all heads. C. Default interest
44. 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. FOR THESE REASONS, THE COURT, UNANIMOUSLY,
1. Declares the application admissible;

2. Holds that there has been a violation of Article 8 of the Convention;

3. Holds
(a) that the respondent State is to pay the applicant, within three months the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:
(i) EUR 5,000 (five thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;
(ii) EUR 1,140 (one thousand one hundred and forty euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses;
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points. Done in English, and notified in writing on 28 May 2019, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Stephen PhillipsHelen KellerRegistrarPresident