FOURTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 32881/04 
by K.H. and Others  
against Slovakia

The European Court of Human Rights (Fourth Section), sitting on 9 October 2007 as a Chamber composed of:

Mr J. Casadevall, President
 Mr G. Bonello
 Mr K. Traja
 Mr L. Garlicki
 Ms L. Mijović
 Mr J. Šikuta, 
 Mrs P. Hirvelä, judges
and Mrs F. Aracı, Deputy Section Registrar,

Having regard to the above application lodged on 30 August 2004,

Having regard to the decision to grant priority to the above application under Rule 41 of the Rules of Court,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,

Having deliberated, decides as follows:

THE FACTS

The applicants, K.H., J.H., A.Č., J.Čo., J.Če., V.D., H.M. and V.Ž. are eight female Slovakian nationals of Roma ethnic origin. They were represented before the Court by Ms V. Durbáková, a lawyer practising in Košice. On 1 February 2005 the President of the Chamber acceded to the applicants’ request and decided that their identity should not be disclosed to the public. On 21 November 2005 K.H., J.H., J.Čo., J.Če., and V.D. also appointed Ms B. Bukovská from the Centre for Civil and Human Rights in Košice to represent them jointly with Ms V. Durbáková.

The respondent Government were represented by Mrs M. Pirošíková, their Agent.

A.  The circumstances of the case

The facts of the case, as submitted by the parties, may be summarised as follows.

1.  Background to the case

The applicants were treated at gynaecological and obstetrics departments in two hospitals in eastern Slovakia during their pregnancies and deliveries. Despite continuing to attempt to conceive, none of the applicants has become pregnant since their last stay in hospital when they delivered via caesarean section. The applicants suspected that the reason for their infertility might be a sterilisation performed on them during their caesarean delivery by medical personnel in the hospitals concerned. Several applicants had been asked to sign documents prior to their delivery or on discharge from the hospital but they were not sure of the content of those documents.

The applicants, together with several other Roma women, granted powers of attorney to lawyers from the Centre for Civil and Human Rights, a non-governmental organisation based in Košice. The lawyers were authorised to review and photocopy the women’s medical records in order to obtain a medical analysis of the reasons for their infertility and possible treatment. The applicants also authorised the lawyers to make photocopies of their complete medical records as potential evidence in future civil proceedings for damages, and to ensure that such documents and evidence would not be destroyed or lost. The photocopies were to be made by the lawyers with a portable photocopier at the expense of the Centre for Civil and Human Rights.

The applicants attempted to obtain access to their medical records in the respective hospitals through their authorised representative in August and September 2002. The lawyer unsuccessfully asked the management of the hospitals to allow her to consult and photocopy the medical records of the persons who had authorised her to do so.

On 11 October 2002 representatives of the Ministry of Health expressed the view that section 16(6) of the Health Care Act 1994 did not permit a patient to authorise another person to consult his or her medical records. The above provision was to be interpreted in a restrictive manner and the term “legal representative” concerned exclusively the parents of a child under age or a guardian appointed to represent a person who had been deprived of legal capacity or whose legal capacity had been restricted.

2.  Civil proceedings

The applicants sued the hospitals concerned. They claimed that the defendants should be ordered to release their medical records to their authorised legal representative and to allow them to obtain a photocopy of the documents included in the records. The applicants also requested that the courts should issue an interim measure permitting their lawyers to have access to their medical files.

(a)  Action against the J. A. Reiman University Hospital in Prešov

Six applicants brought an action against the J.A. Reiman University Hospital (Fakultná nemocnica J. A. Reimana) in Prešov (“the Prešov Hospital”) on 13 January 2003.

On 4 March 2003 the Prešov District Court ordered an interim measure requiring the Prešov Hospital to permit the applicants as well as several other women to consult their medical records and to make excerpts and photocopies thereof within three days of the final effect of that decision.

On 7 July 2003 the Prešov Regional Court amended the first-instance decision, holding that the Health Care Act 1994 did not allow a patient to make photocopies of his or her medical records. This position did not, however, affect the applicants’ rights, as under section 16(5) of the Health Care Act 1994 hospitals were obliged to submit the relevant information to the competent authorities, for example in the context of judicial proceedings. The decision on the interim measure became final on 14 August 2003.

On 3 September 2003 the applicants requested that an officer enforce the interim measure. On 8 December 2003 the defendant hospital lodged an objection, arguing that the applicants’ representatives had not been prevented from consulting the files. On 14 January 2004 the applicants submitted their comments on the objection. The parties submitted no information about any further developments in the enforcement proceedings.

In the meantime, on 18 June 2003, the Prešov District Court delivered a judgment ordering the hospital to permit the plaintiffs and their authorised representative to consult their medical records and to make handwritten excerpts thereof. The relevant part of the judgment became final on 15 August 2003 and enforceable on 19 August 2003.

With reference to section 16(6) of the Health Care Act 1994 the District Court dismissed the request to photocopy the medical documents. The court noted that the records were owned by the medical institutions concerned and that such a restriction was justified with a view to preventing their abuse. It was not contrary to the plaintiffs’ rights and freedoms guaranteed by the Convention. The applicants appealed against that part of the judgment.

On 17 February 2004 the Regional Court in Prešov upheld the first-instance decision, according to which the applicants were not entitled to make photocopies of their medical files. The Regional Court dismissed the applicants’ argument that such a refusal violated the principle of equality of arms. It held, in particular, that under the relevant law the medical institutions were obliged to submit the required information to, inter alia, the courts, for example in the context of civil proceedings concerning a patient’s claim for damages. There existed no indication that the applicants’ right to have their possible claim for damages determined in accordance with the requirements of Article 6 § 1 of the Convention had been jeopardised.

(b)  Action against the Health Care Centre in Krompachy

H.M. and V.Ž., the two remaining applicants, brought an identical action against the Health Care Centre (Nemocnica s poliklinikou) in Krompachy (“the Krompachy Hospital”) on 13 January 2003.

On 16 July 2003 the District Court in Spišská Nová Ves ordered the defendant to allow the applicants’ representative to consult their medical records and to make excerpts thereof. It dismissed the claim concerning the photocopying of the medical documents. The court referred to section 16(6) of the Health Care Act 1994 and noted that even courts or other authorities were not entitled to receive photocopies of medical records. Such a restriction was necessary in order to prevent abuse of personal data contained therein.

The applicants appealed against the decision concerning the photocopying of documents. They relied on Articles 6 and 8 of the Convention and argued that, unlike public authorities and the medical institutions concerned, they had only limited access to their medical records, which meant that they were restricted in assessing the position in their cases and in bringing an appropriate action for damages.

On 24 March 2004 the Regional Court in Košice upheld the first-instance decision to reject the claim concerning the photocopying of the medical records. It further quashed the decision concerning the applicants’ right of access to their medical records, as it had not been shown that the defendant had actually denied the applicants’ representative that right.

The two applicants concerned lodged an appeal on points of law. They alleged that the Krompachy Hospital had refused to allow access to medical records to the authorised representative of other patients. The representatives of the hospital had declared that they would proceed in the same manner in all other cases. The applicants therefore alleged that it was irrelevant that their representative had not submitted to the hospital an authority to review their particular medical records.

On 31 May 2005 the Supreme Court dismissed the appeal on points of law. The applicants’ claim was unsubstantiated and premature as neither the applicants nor any other persons duly authorised by them had asked the defendant hospital for access to the medical records of the applicants. The judgment expressly stated that the two applicants concerned had not contested that fact in their appeal on points of law.

3.  Constitutional proceedings

(a)  Complaint of 24 May 2004

On 24 May 2004 the six applicants who had sued the Prešov Hospital lodged a complaint under Article 127 of the Constitution. They alleged that the Prešov Hospital as well as the District Court and the Regional Court in Prešov had violated, inter alia, their rights under Articles 6 § 1 and 8 of the Convention.

As regards Article 6 § 1 the applicants argued that, in practice, handwritten excerpts from medical records could be abused just as photocopies of the relevant documents could. However, preventing the applicants from making photocopies of those documents put them at a disadvantage vis-à-vis the State to which the medical institutions concerned were subordinated and which would act as defendant in proceedings concerning their possible claim for damages. Furthermore, the principle of equality of arms required that the applicants should have at their disposal the entire documentation in the form of photocopies. It was necessary so that an independent expert, possibly abroad, could examine them, and also in order to prevent their possible destruction.

Under Article 8 of the Convention the applicants complained that they had been denied full access to documents pertinent to their private and family life in that they had been refused the right to make photocopies of them.

The applicants also complained that they had been discriminated against in that they had been unable to obtain sufficient information on their medical status permitting them to obtain professional advice on the prospects of a possible claim for damages against the medical institutions concerned.

On 8 December 2004 the Constitutional Court (Third Chamber) rejected the complaint. It found no appearance of a violation of Article 6 § 1 and of the constitutional equivalent of Article 14 of the Convention in the proceedings leading to the Regional Court’s judgment of 17 February 2004. No sufficiently strong causal link had been established between the refusal to allow the applicants to make photocopies of their medical records and the alleged violation of the principle of equality of arms in proceedings for damages which the applicants could possibly bring in the future.

As to the alleged violation of Article 8 of the Convention, the Constitutional Court held that the Regional Court had correctly applied section 16(6) of the Health Care Act of 1994 and that a fair balance had been struck between the conflicting 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.

(b)  Complaint of 25 June 2004

On 25 June 2004 the remaining two applicants lodged a similar complaint under Article 127 of the Constitution alleging a violation of, inter alia, Articles 6 § 1 and 8 of the Convention as well as of the constitutional equivalent of Article 14 of the Convention as a result of the conduct of the representatives of the Krompachy Hospital and in the proceedings leading to the Košice Regional Court’s judgment of 24 March 2004.

On 27 October 2004 the Constitutional Court (Second Chamber) rejected the complaint. The decision stated that the plaintiffs had lodged an appeal on points of law against the part of the Regional Court’s judgment by which the first-instance decision to grant their claim for access to medical records had been overturned. As an appeal on points of law was available against the whole of the appellate court’s judgment, the Constitutional Court could not accept the applicants’ complaint for adjudication prior to the determination of the relevant issues by the Supreme Court.

4.  Subsequent developments

(a) As regards the records in the Prešov Hospital

After the above judgments given by the District Court and the Regional Court in Prešov on 18 June 2003 and 17 February 2004 respectively had taken final effect, the applicants’ legal representatives on 5 April 2004 asked the Director of the Prešov Hospital to comply with the judicial order, failing which the applicants would request its enforcement.

On 14 April 2004 a representative of the Prešov Hospital replied that his hospital would comply with the judicial decisions in issue. The applicants were asked to contact the head physician with a view to agreeing a date for their visit.

In an application dated 9 December 2004 the applicants informed the Court that, on 5 May 2004, their representatives had reviewed the medical records of four applicants who had been patients in the “new” maternity ward of the Prešov Hospital. They discovered that V.D., the sixth applicant, had been sterilised in 1997 and that J. Če., the fifth applicant, had undergone a hysterectomy during her caesarean delivery in 1997. As to A.Č. and J. Čo., the third and fourth applicants, the lawyers had not identified any information about sterilisation. As regards K.H. and J.H., the first and the second applicant who had been patients in the “old” maternity ward of the Prešov Hospital, the lawyer was allowed on 5 May 2004 to view and take notes only from the “surgery book”, from which it did not appear that those applicants had been sterilised. The hospital staff explained that the medical records were not stored in the same building and that the relevant files had to be located.

In a submission dated 8 July 2005 the applicants informed the Court that the lawyers had viewed the file of the sixth applicant on 5 May 2004 and that they had made photocopies thereof, in accordance with the newly introduced legislation, on 12 January 2005. According to that submission, the records of the first and fourth applicants had been made available, after several requests, on 18 March 2005. The third and the fifth applicants had not had access to their medical records.

According to the applicants’ written observations dated 12 May 2006, the first, third, fourth and fifth applicants had faced obstacles from the Prešov Hospital in seeking to examine their files even after the domestic courts’ orders. Those applicants had been able to gain access to their medical records only in March 2005.

As to the second applicant, J. H., the Prešov Hospital provided her only 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. The hospital has been unable to provide the applicant with a detailed medical record as the file concerning her person is missing. On 22 May 2006 the Director of the Prešov Hospital informed the second applicant that the file had not been located and that it was considered lost due to erroneous manipulation in the past.

On 31 May 2007 the Ministry of Health, in reaction to the second applicant’s complaint, admitted that the Prešov Hospital had violated the Health Care Act 2004 in that it had failed to ensure a proper keeping of the second applicant’s and another person’s medical files. The director of the Prešov Hospital had been instructed to take effective measures with a view to eliminating the shortcomings in keeping of the medical records and to inform the Ministry thereof in writing.

(b) As regards the records in the Krompachy Hospital

In January 2005 the legal representatives of H. M. and V. Ž, the applicants who had been treated in the Krompachy Hospital, were refused permission to consult their clients’ records or to photocopy them. The Director of the hospital expressed doubts as to whether the powers of attorney had been established correctly. He also stated that the detailed arrangements for the implementation of the new legislation remained to be clarified.

The applicants concerned lodged several complaints in this regard. They were eventually allowed to consult and photocopy their files on an unspecified date in the first half of 2005.

B.  Relevant domestic law

1. Code of Civil Procedure

Article 3 guarantees to everyone the right to seek judicial protection of a right which has been placed in jeopardy or violated.

Under Article 6, courts shall proceed with a case in cooperation with the parties in a manner permitting the speedy and efficient protection of persons’ rights.

Pursuant to Article 18, in civil proceedings the parties have equal standing. Courts are obliged to ensure equal opportunities for them to exercise their rights.

Under Article 77 § 1(c), a decision on an interim measure loses its effect fifteen days after the judgment on the merits granting the relevant claim has become enforceable.

Article 78 § 1 provides that, prior to starting proceedings on the merits, courts can secure evidence on a proposal of the person concerned where it is feared that it will be impossible to take such evidence later.

Article 79 § 2 obliges a plaintiff to submit documentary evidence relied upon in an action, with the exception of evidence which the plaintiff is unable to submit for external reasons.

Pursuant to Article 120 § 1, parties are obliged to produce evidence in support of their arguments. The decision as to which evidence will be taken lies with the court. Exceptionally, courts can take other evidence than that proposed by the parties where it is necessary for determination of the point in issue.

Under Article 138 § 1, the presiding judge may grant a party’s request for waiver of court fees where it is justified by the situation of that party and provided that the claim at issue is neither frivolous nor clearly devoid of any prospect of success.

2.  Health Care Act 277/1994

Until 31 December 2004, the following provisions of Health Care Act 277/1994 (Zákon o zdravotnej starostlivosti – “the Health Care Act 1994”) were in force:

“Section 16 – Medical records

1.  The keeping of medical records shall form an inseparable part of health care.

2.  All medical institutions ... shall be obliged to keep medical records in written form... The documents are to be dated, signed by the person who established them, stamped and numbered on each page...

3.  Medical records shall be archived for a period of 50 years after the patient’s death. ...

5.  A medical institution shall be obliged to provide medical records on a specific written request and free of charge, to a public prosecutor, investigator, police authority or court in the form of excerpts, to the extent that they are relevant in the context of criminal or civil proceedings. The medical records as a whole cannot be put at the disposal of the above authorities.

6.  A patient, his or her legal representative ... shall have the right to consult medical records and to make excerpts thereof at the place...

8.  A medical institution shall provide an expert appointed by a court with information from medical records to the extent that it is necessary for preparing an expert opinion...

11.  An excerpt from a person’s medical record ... shall contain exact and true data and give an overview of the development of the health of the person concerned up to the date when the excerpt is established. It shall be established in writing on numbered pages.”

The relevant part of the Explanatory Report to the Health Care Act 1994 reads as follows:

“Medical records remain the property of the medical institution concerned. They contain data about the patient and often also about the members of his or her family or other persons. That information being of a strictly confidential and intimate character, the obligation of non-disclosure extends to them in their entirety. It is therefore necessary to define as precisely as possible cases where a patient or other persons may acquaint themselves with such information.”

3.  Health Care and Services Act 576/2004

On 1 January 2005 the Health Care, Health Care Services and Amendment Act 576/2004 (Zákon o zdravotnej starostlivosti, službách súvisiacich s poskytovaním zdravotnej starostlivosti a o zmene a doplnení niektorých zákonov – “the Health Care Act 2004”) came into force. It repealed, inter alia, section 16 of the Health Care Act 1994. Its relevant provisions read as follows:

“Section 25 – Access to data included in medical records

1. Data included in medical records shall be made available by means of consultation of the medical records to:

(a)  the person concerned or his or her legal representative, without any restriction; ...

(c)  any person authorised in writing by the person mentioned in point (a) ... subject to the signature of the latter being certified in accordance with a special law ... to the extent that it is specified in the authority; ...

(g) an expert appointed by a court or an authority in charge of a criminal case or whom one of the parties has asked for an opinion...; the extent of data necessary for preparing the opinion shall be determined by the expert...

2. The persons entitled to consult medical records shall have the right to make excerpts or copies of them at the place where the records are kept to the extent indicated in paragraph 1.”

COMPLAINTS

1.  Under Article 8 of the Convention the applicants complained that (i) their right to respect for their private and family life had been violated, as the medical personnel had denied them access to their medical records and had not allowed them to make photocopies of those records, and (ii) that the authorities of the respondent State had failed to comply with their positive obligation by ensuring that the applicants actually obtained full access to their medical records, including the right to make photocopies of the relevant documents.

2. The applicants complained that they had been denied effective access to a court, as they had been barred from consulting their medical records and from securing the evidence included in those records by means of photocopies which could be used in later civil proceedings concerning their possible claims for damages. That denial also amounted to a violation of the principle of equality of arms, as they had been placed at a substantial disadvantage vis-à-vis the other side in the preparation of their civil claim for compensation against the medical institutions concerned or the authorities liable for the actions of the former. The applicants relied on Article 6 § 1 of the Convention.

3.  The applicants alleged a violation of Article 13 of the Convention in that they had had no effective remedy at their disposal in respect of their complaints under Articles 6 § 1 and 8 of the Convention.

4.  Finally, the applicants alleged that they had been discriminated against, on grounds of sex, race, colour, association with a national minority and ethnicity, in the enjoyment of their rights under Articles 6 § 1 and 8 of the Convention both in the context of their treatment in the respective hospitals and in the above proceedings. They relied on Article 14 of the Convention.

THE LAW

A. Article 8 of the Convention

The applicants complained that the authorities of the respondent State had failed to ensure that they or their representatives obtained full and effective access to their medical records including the right to make photocopies of the relevant documents. They alleged a violation of Article 8 of the Convention, which in its relevant part provides:

“1.  Everyone has the right to respect for his private and family 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.”

1. Arguments of the parties

(a) The Government

The Government submitted that the six applicants who had been treated in the Prešov Hospital could no longer claim to be victims of a violation of their rights within the meaning of Article 34 of the Convention. They relied on the District Court’s judgment of 18 June 2003 ordering the Prešov Hospital to permit the plaintiffs and their representative to consult the relevant medical records and to make handwritten excerpts thereof. Subsequently, in 2004, the applicants had availed themselves of that right. In the event of impediments, the applicants could have sought enforcement of the judgment in their favour.

As to the two applicants who had been treated in the Krompachy Hospital, their representative had not submitted an authority signed by those applicants when she had attempted to consult the records on 3 September 2002. For that reason the Regional Court in Košice had dismissed the relevant claim on 24 March 2004. That decision had been upheld by the Supreme Court on 31 May 2005. There had been no interference with the rights under Article 8 of the Convention of the two applicants in question. In any event, the applicants could have sought redress before the domestic courts subject to proving that a representative whom they had duly authorised had been prevented from having access to their medical records and making photocopies of the relevant documents after the entry into force of the Health Care Act 2004. In that respect they had not exhausted domestic remedies as required by Article 35 § 1 of the Convention.

The refusal to allow the applicants to make photocopies of their medical files had been in accordance with the relevant provisions of the Health Care Act 1994. It had been compatible with the applicants’ right to respect for their private and family life in the circumstances. In particular, the applicants had been allowed to study the entire records and to make handwritten excerpts thereof. The refusal to allow the applicants to photocopy their medical records had been justified, at the relevant time, by the State’s obligation to protect the relevant information from abuse. The State enjoyed a margin of appreciation in regulating similar issues, which had not been overstepped in the case of the applicants, who had not been prevented from obtaining all relevant information related to their health.

(b) The applicants

The applicants maintained that they were still victims of the alleged violation of their Convention rights as the Slovakian authorities had neither acknowledged such violations nor had they provided appropriate redress to them. They submitted that, with the exception of the sixth applicant, the records had been made available to them in an effective manner only after the new legislation had entered into force in 2005. Moreover, the medical records of the second applicant were missing. The long period during which the applicants had been unable to have access to their medical records had resulted in a state of anxiety and uncertainty about their reproductive status and health, contrary to their right to respect for their private and family life. The reasons invoked by the Government did not justify such a situation.

2. The Court’s assessment

(a) Unavailability of photocopies of medical records under the Health Care Act 1994

As regards the complaint that the applicants had been prevented from making photocopies of their medical records, the Court notes that, at the time of introduction of the application, the relevant law excluded such a possibility. That position was confirmed by the ordinary courts and the Constitutional Court in proceedings initiated by several applicants.

In the course of 2005, after Act 576/2004 had come into force, the applicants, with the exception of the second one, whose file had been lost, were allowed to make photocopies of the medical records. The applicants have not lost their status as victims as a result of that development in respect of this part of the application as there is no indication that the domestic authorities acknowledged (e.g. in the context of the amendment of the relevant law or in the context of the proceedings before the Court) the alleged violation of their rights under Article 8 of the Convention resulting from the state of the national law at the time of introduction of the application, or that they provided any redress to the applicants (see recapitulation of the relevant principles in Amuur v. France, judgment of 25 June 1996, Reports of Judgments and Decisions 1996-III, p. 846, § 36 and Dalban v. Romania [GC], no. 28114/95, § 44, ECHR 1999-VI).

The applicants can therefore still claim to be victims as regards their complaint under Article 8 of the Convention that they were unable to obtain photocopies of their medical records prior to 1 January 2005. That complaint concerns the exercise by the applicants of their right of effective access to information concerning their health and reproductive status. As such it can be regarded as being sufficiently closely linked to their private and family lives within the meaning of Article 8 as to raise an issue under that provision (see, mutatis mutandis, Roche v. the United Kingdom [GC], no. 32555/96, § 155, ECHR 2005-..., with further reference). This has not been disputed between the parties.

The Court considers, in the light of the parties’ submissions, that the complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.

(b) As regards access to medical records

(i) V.D.

The representatives of the sixth applicant, V.D., were allowed to consult her medical records in the Prešov Hospital on 5 May 2004, that is, prior to the introduction of the application on 30 August 2004. The remedy which the sixth applicant thus used redressed the alleged violation of Article 8 of the Convention resulting from the refusal, by the hospital authorities, to allow her to have access to her medical records through an authorised representative. In this respect the sixth applicant can therefore not claim to be a “victim” within the meaning of Article 34 of the Convention.

It follows that this complaint by V.D. is incompatible ratione personae with the provisions of the Convention within the meaning of Article 35 § 3 and must be rejected in accordance with Article 35 § 4.

(ii) J.H.

As regards J.H., the second applicant, the Prešov Hospital did not deny her access to her medical records in defiance of the judicial order. However, its employees were unable to locate the file in the hospital archives and it was ultimately declared lost. The Ministry of Health acknowledged that the hospital had failed to respect the relevant provisions of the Health Care Act 2004.

As a result of that development, a new situation arose compared with that of which the second applicant had initially complained. Following the judicial orders the hospital authority did not refuse the second applicant access to the records, but she has been unable to gain access as the substantial part of the records is not available owing to defective handling in the past.

Given the subsidiary nature of the protection mechanism established under the Convention, the Court considers that the second applicant should seek redress before the ordinary courts and, ultimately, the Constitutional Court, as regards any alleged negligent handling of her medical records.

It follows that this part of the application must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.

(iii) K.H., A.Č., J.Čo. and J.Če.

As regards the four other applicants who had delivered in the Prešov Hospital, namely K.H., A.Č., J.Čo. and J.Če., the Prešov District Court in its judgment of 18 June 2003 formally confirmed their right to view their medical records, either in person or through an authorised representative, and to make handwritten excerpts thereof. The relevant part of the judgment became final on 15 August 2003.

On 14 April 2004, in reply to the applicants’ request, a representative of the Prešov Hospital confirmed his readiness to comply with the judicial order. The applicants were asked to agree dates to view the files with the head physician.

The Court notes that in their submission dated 9 December 2004 the applicants stated that on 5 May 2004 their representatives had viewed the medical records of A.Č., J.Čo. and J.Če. The complete record of K.H. was not available on that date as it was stored in a different building; the lawyer was allowed to take notes from the surgery book on 5 May 2004.

In their subsequent submissions to the Court the applicants’ representative stated that the above four applicants had faced obstacles from the Prešov Hospital staff. The applicants in question had been able to have access to their medical records and photocopy them only in March 2005.

Thus there is a certain inconsistency in the applicants’ submissions on this issue, and the documents before the Court do not permit the establishment of the exact dates and circumstances under which the applicants concerned exercised their rights under the judicial order of 18 June 2003.

Even assuming that an issue under Article 8 Convention arises as a result of the failure of the Prešov Hospital’s representatives to comply promptly with the judicial order in issue, the Court finds relevant the Government’s argument that the applicants could have sought enforcement of the judicial order of 18 June 2003 after it had become final and enforceable.

The fact that the applicants, had asked earlier for enforcement of the interim measure ordering the hospital to allow them access to their medical records cannot affect this position. In particular, the decision on the interim measure became final on 14 August 2003 and, pursuant to Article 77 § 1(c) of the Code of Civil Procedure, that decision lost its effect fifteen days after the judgment of 18 June 2003 became enforceable on 19 August 2003.

It follows that this part of the application must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.

(iv) H.M. and V.Ž.

As regards H.M. and V.Ž., the applicants who were treated in the Krompachy Hospital, the domestic courts’ decisions indicate that their representatives had not submitted to the hospital management powers of attorney signed by the two applicants when they had attempted to consult their files in 2002. In particular, on 31 May 2005 the Supreme Court found their claim to be unsubstantiated and premature as neither the two applicants concerned nor any other person duly authorised by them had asked the defendant hospital for access to the medical records of those particular applicants. The judgment expressly stated that the applicants had not contested that fact in their appeal on points of law. The applicants have also not shown that they sought redress before the Constitutional Court after the delivery of the Supreme Court’s judgment. In this respect the applicants concerned have not, therefore, complied with the requirement as to the exhaustion of domestic remedies laid down in Article 35 § 1 of the Convention.

After the entry into force of the Health Care Act 2004, in January 2005, representatives of the Krompachy Hospital did not allow the applicants’ lawyers to consult the records or to photocopy them. The Director of the hospital expressed doubts as to whether the powers of the attorneys had been established correctly. He also stated that the detailed arrangement for the implementation of the new legislation remained to be clarified.

The applicants lodged several complaints in this respect. They were ultimately allowed to consult and photocopy their files on an unspecified date in the first half of 2005.

Even assuming that the two applicants concerned had exhausted domestic remedies as regards the difficulties in having access to their files after the entry into force of the Health Care Act 2004, the Court considers, in the light of the documents before it, that this part of the application discloses no appearance of a violation of Article 8 of the Convention. It must therefore be rejected in accordance with Article 35 §§ 1, 3 and 4 of the Convention, partly for non-exhaustion of domestic remedies and partly as being manifestly ill-founded.

B. Article 6 § 1 of the Convention

The applicants complained that, as a result of the above facts, they had been denied effective access to a court and that the principle of equality of arms had been violated. They relied on Article 6 § 1 of the Convention, the relevant part of which provides:

“In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by [a] ... tribunal...”

1. The parties’ submissions

(a) The Government

The Government referred to the conclusions reached by the Constitutional Court on 8 December 2004. The applicants’ arguments were purely hypothetical as they had not attempted to bring civil proceedings in respect of any damage to their health which they might have suffered. Furthermore, the relevant provisions of the Code of Civil Procedure provided sufficient guarantees for the applicants to be able effectively and in accordance with the principle of equality of arms to seek redress before the courts in respect of any infringement of their rights which they may have established during the consultation of their medical records.

(b) The applicants

The applicants argued that they had been barred from having access to their medical records and from securing the evidence included in those records by means of photocopies which could be used in later civil proceedings concerning their possible claims for damages. That denial also amounted to a violation of the principle of equality of arms, as they had been placed at a substantial disadvantage vis-à-vis the other side in the preparation of their civil claim for compensation against the medical institutions concerned or the authorities liable for their actions. Obtaining evidence from the medical records was essential for an assessment of the position in their cases and of the prospects of success of their possible civil actions. The latter element was important as the applicants would be ordered to reimburse the other party’s costs if the courts dismissed their action. Furthermore, under domestic law, copies of the records were to be made available only to experts, and not to the domestic courts, which would thus be unable to check any inconsistency in the applicants’ medical records.

2. The Court’s assessment

(a) Access to a court

Article 6 § 1 secures to everyone the right to have a claim relating to his civil rights and obligations brought before a court. It may also be relied on by “anyone who considers that an interference with the exercise of one of his (civil) rights is unlawful and complains that he has not had the possibility of submitting that claim to a tribunal meeting the requirements of Article 6 § 1 (see Markovic and Others v. Italy [GC], no. 1398/03, §§ 92 and 98, ECHR 2006-..., with further references).

The applicants alleged that they had been in a state of uncertainty as regards their health and reproductive status following their treatment in the two hospitals concerned. Obtaining the relevant evidence, in particular in form of photocopies, was essential for an assessment of the position in their cases from the perspective of effectively seeking redress before the courts in respect of any shortcomings in their medical treatment.

Thus in the present case the question arises whether the guarantees of Article 6 § 1 extend to a situation where a person has, in principle, a civil claim but considers that the evidential situation resulting from the legal provisions in force prevents him or her from effectively seeking redress before a court.

The Court considers, in the light of the parties’ submissions, that the complaint raises serious issues of fact and law under the Convention, including the applicability of Article 6 § 1 of the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.

(b) Right to a fair hearing

In civil proceedings the concept of a fair trial, of which equality of arms is one aspect, implies that each party must be afforded a reasonable opportunity to present his or her case - including evidence – under conditions that do not place him/her at a substantial disadvantage vis-à-vis his/her opponent. It also implies the right for the parties to have knowledge of and to comment on all evidence adduced or observations filed. The Court’s role is to ascertain whether the proceedings considered as a whole were fair (for recapitulation of the relevant case-law see, for example, Steck-Risch and Others v. Liechtenstein, no. 63151/00, §§ 54-55, 19 May 2005 and Komanický v. Slovakia, no. 32106/96, §§ 45-47, 4 June 2002).

It has not been argued in the present case that the applicants concerned actually initiated proceedings with a view to claiming redress in respect of any shortcomings in their medical treatment. In these circumstances, their complaints about the unfairness of such proceedings are hypothetical. It is not for the Court to speculate about the evidential situation in domestic proceedings which the applicants may envisage introducing or about the outcome of such proceedings.

It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

C. Complaint under Article 14 of the Convention

The applicants alleged that they had been discriminated against in the enjoyment of their rights under Articles 6 § 1 and 8 of the Convention both by the hospital staff and in the above proceedings. They alleged a violation of Article 14 of the Convention, which provides:

“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”

The Government maintained that the six applicants treated in the Prešov Hospital had not been subjected to treatment different from that of other persons in a similar situation. In any event, the applicants could seek redress by means of an action under Articles 11 et seq. of the Civil Code for protection of their personal rights, relying on their alleged discrimination.

As regards the two other applicants who had been treated in the Krompachy Hospital, their complaint was manifestly ill-founded as they had not shown that they had attempted, either in person or through an authorised representative, to have access to their medical records prior to the introduction of the application.

The applicants, relying on several studies including the report of the Commissioner of Human Rights of the Council of Europe of 17 October 2003 on sterilisation practices, argued that there had been widespread intolerance in respect of persons of Roma origin. In those circumstances, it was for the Government to show that the applicants had not been subjected to discriminatory treatment.

The Court first notes that the present case relates to impediments which the applicants complain of having experienced while attempting to have effective access to their medical records through their authorised representatives. It has not been its task to examine the circumstances of the applicants’ stay and treatment in the hospitals concerned, several years before the introduction of the present application, an issue which the applicants apparently have not submitted to the ordinary courts and, ultimately, the Constitutional Court.

(a) The Court notes that the Health Care Act 1994 did not allow patients to obtain photocopies of their medical records. The refusal to allow the applicants to make photocopies of their records, based on the legislation generally applicable at the relevant time, cannot therefore be considered discriminatory treatment contrary to Article 14 of the Convention.

It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

(b) The documents submitted indicate that the refusal by the public health authorities to allow the applicants’ representatives to consult their clients’ medical records stemmed from a restrictive interpretation of the relevant provisions of the Health Care Act 1994. In particular, in a letter of 11 October 2002 representatives of the Ministry of Health expressed the view that section 16(6) of the Health Care Act 1994 did not permit a patient to authorise another person to consult his or her medical records. The above provision was to be interpreted in a restrictive manner in that the term “legal representative” contained in that section concerned exclusively the parents of a child under age or a guardian appointed to represent a person who was deprived of legal capacity or whose legal capacity was restricted.

In the subsequent proceedings initiated by six applicants the District Court in Prešov gave a binding interpretation of the relevant provision to the effect that it allowed a patient to authorise any person to consult the medical record on the patient’s behalf. The judgment on that issue became final on 15 August 2003, that is prior to the introduction of the application on 30 August 2004. The District Court in Spišská Nová Ves in its judgment of 16 July 2003 interpreted 16(6) of the Health Care Act 1994 in the same way in respect of the two other applicants. The fact that that judgment was subsequently overturned on the ground that the plaintiffs had not shown that the Krompachy hospital had actually refused access to medical records to their representatives cannot affect that position. The Health Care Act 2004, in force from 1 January 2005, explicitly provides in section 25(1)(c) for an authorised representative to have access to a patient’s medical records.

Thus the documents submitted do not indicate that the refusal by the health care authorities to allow the applicants’ representatives to consult the medical records was discriminatory on any of the grounds enumerated in Article 14. In any event, the applicants were able to obtain redress in that respect before the ordinary courts.

In view of the documents before it, the Court sees no indication of discriminatory treatment of the applicants in the context of their representatives’ subsequent attempts to have access to the records under the Health Care Acts of 1994 and 2004 respectively.

It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

D. Complaint under Article 13 of the Convention

The applicants complained that they had no effective remedy at their disposal in respect of their above complaints under Articles 6 § 1 and 8 of the Convention. They alleged a violation of Article 13 of the Convention, which provides:

“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

The Government argued that the applicants had at their disposal an effective remedy, namely a complaint under Article 127 of the Constitution.

The applicants maintained that they had exhausted all domestic remedies available to them. They had been unable to obtain redress by means of those remedies.

(a) The Court has declared admissible the applicants’ complaints under Articles 8 and 6 § 1 of the Convention related to the fact that the Health Care Act 1994, as interpreted and applied by the domestic courts, prevented them from obtaining photocopies of their medical records.

To the extent that the applicants alleged a violation of Article 13 of the Convention in respect of that complaint, the Court considers, in the light of the parties’ submissions, that this part of the application raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.

(b) According to the Court’s case-law, Article 13 applies only where an individual has an “arguable claim” to be the victim of a violation of a Convention right (see Boyle and Rice v. the United Kingdom, judgment of 27 April 1988, Series A no. 131, § 52).

The Court has found above that the applicants’ remaining complaints were inadmissible as being incompatible ratione personae with the provisions of the Convention, manifestly ill-founded or for non-exhaustion of domestic remedies. For similar reasons, the applicants did not have an “arguable claim” and Article 13 is therefore inapplicable to the respective parts of their case.

It follows that this part of the application is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must be rejected pursuant to Article 35 § 4.

For these reasons, the Court unanimously

Declares admissible, without prejudging the merits, the applicants’ complaints about a violation of their rights under (i) Article 8 of the Convention to respect for their private and family life, (ii) Article 6 § 1 of the Convention of access to a court and (iii) Article 13 of the Convention to an effective remedy as a result of the failure by the domestic authorities to make available to them photocopies of their medical records under the Health Care Act 1994; and

Declares inadmissible the remainder of the application.

Fatoş Aracı Josep Casadevall 
 
Deputy Registrar President

K.H. AND OTHERS v. SLOVAKIA DECISION


K.H. AND OTHERS v. SLOVAKIA DECISION