CASE OF AVILKINA AND OTHERS v. RUSSIA
Remainder inadmissible;Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for private life);Non-pecuniary damage - award
Dmitry Dedov;Elisabeth Steiner;Erik Møse;Isabelle Berro-Lefèvre;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Ksenija Turković
5. The applicant organisation is a religious organisation, the Administrative Centre of Jehovah’s Witnesses in Russia, located in St Petersburg. The second applicant, Ms Yekaterina Sergeyevna Avilkina, was born in 2006 and lives in Nalchik. The third applicant, Ms Nina Nikolayevna Dubinina, was born in 1959 and lives in Murmansk. The fourth applicant is Ms Valentina Alekseyevna Zhukova, was born in 1956 and lives in the Leningrad region. 6. On 23 September 2004 the Committee for Salvation of Youth from Destructive Cults (“the Committee”) wrote to the Russian President targeting primarily the beliefs and practices of the applicant organisation and accusing it of extremism. The letter also contained a request for an inquiry into the applicant organisation’s activities. 7. On 16 November 2004 the Committee’s letter was forwarded by the President’s Administration to the St Petersburg City Prosecutor’s Office. The ensuing inquiry disclosed no unlawfulness in the applicant organisation’s activities. 8. On 28 March 2005 the Committee lodged another complaint against the applicant organisation. It was rejected on 4 April 2005. Subsequently the Committee introduced six more complaints. All of them were rejected following an inquiry. 9. During the period between 7 March 2005 and 3 May 2007 the applicant organisation addressed five letters to the authorities asking about the results of their inquiries. The prosecutor’s office responded that the applicant organisation’s activities had revealed no violations. The applicant organisation’s request to review the relevant file was refused. 10. According to the applicant organisation, within the framework of the inquiries the City Prosecutor’s Office interacted with other State agencies, submitted religious literature for expert examination, studied medical files of members of the applicant organisation, intervened in a school matter without parental consent and examined repeated complaints from organisations and individuals. 11. On 1 June 2007 a St Petersburg Deputy City Prosecutor asked the St Petersburg Public Health Committee to instruct all the city’s medical institutions to report every refusal of transfusion of blood or its components by Jehovah’s Witnesses. The prosecutor’s letter read as follows: “In response to the order of the Russian Federation Prosecutor General’s Office, the city prosecutor’s office is investigating the lawfulness of the activity of the religious organisation known as the Administrative Centre of Jehovah’s Witnesses in Russia. The ideology of the said organisation forbids its adherents to accept transfusions of blood or blood components. An investigation has established that in a series of cases refusals of blood transfusions hindered the administration of qualified medical care and aggravated the illness. In view of the above, I request that you instruct all medical institutions in St Petersburg to inform the committee, without delay, of any incidents of refusal of transfusion of blood or its components by individuals who are members of the said religious organisation.” 12. On 4 June 2007 the City Prosecutor’s Office dismissed the applicant organisation’s request for access to the materials compiled by it in the course of the inquiries. 13. From 2 February to 5 April 2006 the fourth applicant underwent surgical treatment in a state hospital without the use of foreign blood or blood components. On 25 January 2007 the Kurortnyy District Prosecutor’s Office asked the hospital to submit her medical record. 14. On 26 July 2007 the fourth applicant learnt that the District Prosecutor’s Office had reviewed her medical documents and information on the treatment methods and their results. 15. On 26 March 2007 the third applicant was admitted to a public hospital. She chose to have non-blood management treatment for her condition which the hospital did not agree to provide. On 18 April 2007 she was discharged from hospital. She was then admitted to a private hospital for a surgical intervention. The public hospital did not report her case to the prosecutor’s office. 16. On unspecified dates the second applicant underwent chemotherapy in a public hospital, following a non-blood management treatment plan. In response to the Deputy City Prosecutor’s request (see paragraph 11 above), the doctors informed the Public Health Committee and the prosecutor’s office of her case. 17. On an unspecified date the applicant organisation and several of its members, including the second, third and fourth applicants, lodged a complaint against the prosecutor’s office whereby they asked the court (1) to declare unlawful the inquiries carried out by the prosecutor’s office in connection with the applicant organisation’s activities; (2) to instruct the authorities to cease their interference with the rights and lawful interests of the applicant organisation and to discontinue the investigation into its activities; (3) to declare unlawful the decision of the prosecutor’s office of 4 June 2007 refusing access to the investigative materials; (4) to order the prosecutor’s office to return the medical documents to their respective owners and to require the destruction of the relevant materials, if any, held by the authorities; (5) to order the prosecutor’s office to return the religious literature to the applicant organisation in its entirety and undamaged; (6) to oblige the prosecutor’s office to provide the applicant organisation with the findings of the expert study of the applicant organisation’s religious literature; (7) to instruct the prosecutor’s office to restrain the Committee and other similar organisations from their attacks against the applicant organisation; (8) to instruct the prosecutor’s office to take appropriate measures regarding malicious and unfounded allegations against the applicant organisation in the event that any such allegations contained slander, defamatory statements, or signs of extremism or were untrustworthy. 18. On 27 March 2008 the Oktyabrskiy District Court of St Petersburg granted the applicants’ claims in part. It pronounced unlawful the prosecutor’s office’s decision of 4 June 2007 and instructed it to grant the applicant organisation’s representatives access to the materials from the inquires. The remainder of the application was dismissed. 19. As regards the third applicant’s allegedly premature discharge from the public hospital, the court noted that this issue was beyond the scope of the applicants’ complaint against the prosecutor’s office. 20. The court noted as follows in respect of the disclosure of the second and fourth applicants’ medical files: “According to Article 61 of the Basic Principles of Public Health Law, information concerning medical consultation, an individual’s health, his or her diagnosis and other data obtained in the course of examination or treatment shall be considered confidential (medical secret). A patient is guaranteed confidentiality of the data he or she provides. Accordingly ... it should be acknowledged that information on blood transfusion and the method of treatment of a patient, is considered confidential, and the disclosure of such [information], in the absence of [the patient’s] consent, by a person privy to it as a result of their studies or professional duties is permissible only in the instances provided for in part four of Article 61 of the Basic Principles of Public Health Law. It is true that, in the letter dated 1 June 2007 ... the St Petersburg Deputy Prosecutor advised the chairman of the St Petersburg Public Health Committee to order all medical institutions in St Petersburg to inform the said committee of each refusal of transfusion of blood or its components by members of the Jehovah’s Witnesses, and to forward such information received by the committee to the St Petersburg Prosecutor’s Office ... . ... According to part 4 § 3 of Article 61 of the Basic Principles of Public Health Law, as in force before the amendments were introduced ... on 24 July 2007, the prosecutor, in connection with an investigation, had a right to apply to a medical institution with a request to disclose confidential medical information. The court finds incorrect the argument of the representative [of the applicant organisation] and of [the second applicant] that the prosecutor had the power indicated above only when conducting a criminal investigation and not when conducting an investigation concerning compliance with laws, inasmuch as [the wording of Article 61] did not refer to such a restriction. The letter of the St Petersburg Deputy Prosecutor of 1 June 2007 ... was sent to the chairman of the St Petersburg Public Health Committee before [Article 61] was amended and cannot be considered to be in contravention of the law. ... The request of the Kurortnyy District Prosecutor’s Office of St Petersburg of 25 January 2007 ... sent to [the oncology centre where the fourth applicant underwent treatment] requesting [her] medical history file concerned only the information regarding the possibility of blood transfusion for [the fourth applicant], the reasons for her refusal of such treatment and the consequences of her refusal ... .” 21. On 2 July 2008 the St Petersburg City Court upheld the judgment of 27 March 2008 on appeal. 22. According to the applicant organisation, the prosecutor’s office failed to comply with the judgment of 27 March 2008 ordering the latter to allow the applicant organisation to review the materials of the inquiry. The applicant organisation’s representatives were allowed to review only ten per cent of the materials in question. 23. The Basic Principles of Public Health Law of the Russian Federation (in force at the relevant time) provided as follows: Article 61. Confidential medical information (medical secret) “Information concerning medical consultation, an individual’s health, his or her diagnosis and other data obtained in the course of examination or treatment shall be considered confidential (medical secret). ... Confidential medical information cannot be disclosed by a person privy to it as a result of their studies or their professional, employment-related or other duties, except as provided for in parts three and four of this Article. A person or his legal representative may consent to the disclosure of confidential medical information to other persons, including officials, for the patient’s examination and treatment, scientific research, publications, training and other purposes. Confidential medical information may be disclosed without the consent of the individual or his legal representative: ... 3) At the request of investigating bodies, a prosecutor or a court in connection with an investigation or judicial proceedings.” Article 69. The individual’s right to appeal against actions of state bodies or officers infringing the individual’s rights and liberties in the public health sphere “Actions of State bodies or officers which infringe the individual’s rights and liberties set forth in the present Basic Principles in the sphere of public health may be appealed against to higher State bodies or officials or to a court in accordance with the applicable legislation.” 24. The Federal Law on the Prosecutor’s Office in force since 1992, as amended, provides as follows: Article 22. The prosecutor’s power [as regards legal compliance] “1. When carrying out the duties incumbent on him or her, the prosecutor may: ... ..., conduct inquiries in respect of materials and requests received by the prosecutor’s office ... ; Summon State officials and private parties in order to obtain their explanations as regards violations of the law.” Article 27. The prosecutor’s power [as regards protection of human rights and freedoms] “1. In performing his or her functions, the prosecutor shall: Examine and consider reports, complaints and other statements concerning [alleged] infringements of human rights and liberties; Explain to the persons concerned the procedure to follow to protect their rights and liberties; Take measures to prevent and to stop violations of human rights and liberties, prosecute individuals who break the law, and have any damage repaired; ... .”