Companion website for
COMPARATIVE MEDIA LAW & ETHICS
by TIM CROOK
Published by Routledge on 15th December 2009
For details of the book, please visit Routledge.
Author's profile at Goldsmiths, University of London
Z v Finland ECHR ruling 22009/93 [1997] ECHR 10 (25 February 1997)
Privacy rights of a woman with HIV who was married to a man committing rapes on other women who was subsequently prosecuted for attempted manslaughter. Finland’s criminal justice system required evidence of when the criminal defendant had a reasonable knowledge that he was also HIV positive. The Finnish Court of Appeal released a judgment identifying convicted rapist (X) and his wife (Z) who had become a reluctant witness in the proceedings.
The key issue in the Finnish criminal case was whether and when the woman Z informed her husband, a serial rapist, that she was HIV positive. The Appeal Court in Finland decided that she had given him sufficient information for him to suspect he was likely to be HIV positive before he raped other women. The ECHR case though turned on issues of privacy as Z was the applicant complaining that Finland’s legal system had not protected her privacy rights under Article throughout the process.
Key points in the narrative are:
The applicant Z 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).
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.
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. 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. On 7 April 1992 the police attempted to interview the applicant Z but, as she was married to X, she relied on her right under Finnish law not to give evidence against her spouse.
But the Finnish police received further complaints of sexual assault and suspicion of being infected with HIV from three more women: P.-L. and P., in September 1992, and R. who made a complaint of rape in December 1991. And R informed the police that the alleged rapist’s wife Z had already been found to be HIV-positive in 1990.
In order to pursue the prosecution of attempted manslaughter through HIV infection the police needed to obtain information from X, Z or their doctors on when X had become aware of his wife’s HIV infection; particularly if this had been before 19th March 1992.
At the hearing on 17 March 1993, Dr D. confirmed that a blood test performed in August 1990 had shown that the applicant Z was HIV-positive. At the hearing on 5 May 1993 the applicant Z 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.
The police seized medical records, which produced the following items of evidence included in the case files:
The seized records comprised some thirty documents including the following statements:
"...25 September 1990: Z [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 ..."
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 ordered that the full reasoning and the documents in the case be kept confidential for ten years.
In a judgment of 10 December 1993, a copy of which was made available to the press, the Court of Appeal upheld the conviction of X on three counts of attempted manslaughter and, in addition, convicted him on two further such counts related to offences committed on 19 December 1991 and 6 September 1992. It increased his total sentence to eleven years, six months and twenty days' imprisonment.
As regards the two additional counts of attempted manslaughter, the judgment stated:
"... According to [X - mentioned by his first names and family name] he found out that he was suffering from an HIV infection on 19 March 1992 ... He denied having undergone any HIV examination since being tested in Kenya in January 1990…On 31 August 1990 [the applicant Z] was found to be an HIV carrier. When she gave evidence before the City Court, [she] said that she had informed X of this finding at the end of 1990. In the Court of Appeal, X said that the applicant had already informed him about her disease before he came to Finland in January 1991…it must be considered established that, given the status of [X's] wife as an HIV carrier, [X] had particular reason to suspect that the infection had been transmitted through their
sexual intercourse.’On 15 June 1992 the large-circulation evening newspaper Ilta-Sanomat reported X's trial, stating that he was infected with HIV and that it was not yet certain whether the applicant Z was also infected, as she had refused to give evidence. On 9 April 1993 the leading daily Helsingin Sanomat reported the police seizure of the applicant's medical records under the headline "Prosecutor obtains medical records of wife of man accused of HIV rapes". The article stated that the wife of X, whose first name and family name were mentioned in full, was a patient in a hospital unit treating patients suffering from HIV infection.
The Court of Appeal's judgment of 10 December 1993 was reported by various newspapers, including Helsingin Sanomat which, after receiving it by fax from the Court of Appeal, published an article on 16 December 1993. The article stated that the conviction had been based on the statement of "[X]'s Finnish wife", while mentioning his name in full; in addition, it referred to the Court of Appeal's finding hat the applicant was HIV-positive.
ECHR ruled: ‘the Court must examine whether there were sufficient reasons to justify the disclosure of the applicant's identity and HIV infection in the text of the Court of Appeal's judgment made available to the press.
Under the relevant Finnish law, the Court of Appeal had the discretion, firstly, to omit mentioning any names in the judgment permitting the identification of the applicant and, secondly, to keep the full reasoning confidential for a certain period and instead publish an abridged version of the reasoning, the operative part and an indication of the law which it had applied. In fact, it was along these lines that the City Court had published its judgment, without it giving rise to any adverse comment
Irrespective of whether the applicant had expressly requested the Court of Appeal to omit disclosing her identity and medical condition, that court was informed by X's lawyer about her wishes that the confidentiality order be extended beyond ten years. It evidently followed from this that she would be opposed to the disclosure of the information in question to the public.
In these circumstances […] the Court does not find that the impugned publication was supported by any cogent reasons. Accordingly, the publication of the information concerned gave rise to a violation of the applicant's right to respect for her private and family life as guaranteed by Article 8 (art. 8).’
