法律翻译 | 将隐私数据纳入隐私权中的“私人生活”范畴：Z诉芬兰案

译者 | 胡译文 中国人民大学

一审 | 李正茂 香港大学

二审 | 刘汉青 北京师范大学

编辑 | 王妮茜 新疆农业大学

         仲飞宇 西安外国语大学

责编 | 李   薇 浙江工商大学

将隐私数据纳入隐私权中的

“私人生活”范畴：Z诉芬兰案

The applicant 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).

申请人Z是一位居住在芬兰的芬兰公民。本案发生时，她已经嫁给了非芬兰人X。他们于1995年9月22日离婚，并且都感染了艾滋病。

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.

1992年3月初，在M提出性犯罪的控告后，警方对该起故意杀人未遂案件展开了调查，怀疑X在3月1日故意传播艾滋病毒给M。

According to the facts as established by the Commission, during a police interview on 5 March 1992 M. identified X as the perpetrator and the police informed her that X’s spouse, the applicant, was HIV-positive. On 10 April 1992, the police advised M. that X was also infected.

根据委员会确定的事实，1992年3月5日警方询问期间，M指认X为犯罪人。并且，警方告诉她，X的配偶（即申请人）感染了艾滋病。1992年4月10 日，警方告知M，X也受到了感染。

On 7 April 1992 the police attempted to interview the applicant but, as she was married to X, she relied on her right under Finnish law not to give evidence against her spouse.

1992年4月7日，警察试图询问申请人，但由于她与 X 的婚姻关系，申请人享有受芬兰法律保护的、不提供不利于配偶的证据的权利。

On 18 May 1992 and with X’s consent, L., senior doctor at the hospital where X and the applicant had been treated, transmitted copies of X’s medical records to the public prosecutor. These had been edited so as to omit all references to the applicant.

1992年5月18日，在征得X的同意后，X和申请人就诊医院的高级医生L向公诉人转交了X的病历副本。这些副本经过编辑，删除了所有提及申请人的内容。

On 27 May 1992 M.’s counsel informed the public prosecutor that the copies of X’s medical records appeared to be incomplete. That same day the public prosecutor asked the police to obtain statements from senior doctor L. and any other doctors who had been treating X, whether as experts or ordinary witnesses, in order to obtain information from them on when X had become aware of his HIV infection.

1992年5月27日，M的律师通知公诉人，X的医疗记录副本似乎不完整。同天，公诉人要求警方取得高级医生L和其他治疗过X的医生的声明材料（无论是作为专家还是普通证人），以便获得关于X何时认识到自己感染艾滋病毒的信息。

On 8 and 9 March 1993 the police carried out a search at the hospital where the applicant and X had occasionally been treated. The police seized all the records concerning the applicant and appended copies of these to the record of the investigation concerning the charges against X of attempted manslaughter. These measures had been ordered by the prosecution. After photocopying the records the police returned them to the hospital.

1993年3月8日和9日，警察在申请人和X曾接受治疗的医院进行了调查，取得了与申请人有关的所有记录，并将这些记录的副本附在对X故意杀人指控的调查记录之后。这些措施是检方下令采取的。警方在复印了这些资料后将其归还给了医院。

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.

1993年5月19日，除其他事项外，城市法院认定X于1992年3月1日、8月31日和9月10日所犯的三起罪行构成了故意杀人未遂罪，但驳回了公诉人对他于1991年12月19日所犯罪行的故意杀人未遂指控，并认定X犯有强奸罪。最终，城市法院判处X 7年监禁。

The City Court published the operative part of the judgment, an abridged version of its reasoning and an indication of the law which it had applied in the case. The City Court ordered that the full reasoning and the documents in the case be kept confidential for ten years. Both the complainants as well as X had requested a longer period of confidentiality.

城市法院公布了本案判决的执行部分，即本案的简要推理和本案所适用的法律的说明。法院下令将完整的推理和本案中的文件保密十年，但申请人和X都要求延长保密期间。

城市法院公布判决之后，申请人、X和控方都就该判决向赫尔辛基上诉法院提出了上诉，要求延长案涉文件的保密期间，但上诉法院维持了城市法院的判决。随后，申请人又向最高法院提出申请，要求撤销上诉法院的判决，但该申请最终被驳回。因此，申诉人向欧洲人权委员会提出申诉，认为她依据《欧洲人权公约》（以下简称《公约》）第8条所享有的私人和家庭生活受到尊重的权利受到了侵犯。本案的争议焦点为以下四项行为是否违反了《公约》第8条：(1) 要求申请人的医疗顾问提供证据的命令；(2)获取她的医疗记录并将其列入调查档案；(3)执行在2002年向公众公开有关医疗数据的措施；(4) 上诉法院在判决书中公布申请人的身份和医疗状况。

（图片来源于网络）

《欧洲人权公约》第8条

1.Everyone has the right to respect for his private and family life, his home and his correspondence.

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.个人有权享有使自己的私人和家庭生活、住所和通信得到尊重的权利。

2. 政府不得干预上述权利的行使，但是，依照法律规定的干预以及基于在民主社会中为了国家安全、公共安全或者经济福利的利益考虑，为了防止混乱或者犯罪，保护健康或者道德，保护他人的权利与自由，而有必要进行干预的，不受此限。^[1]

（图片来源于网络）

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 them were relevant and sufficient and whether the measures were proportionate to the legitimate aims pursued.

在判断受到指责的措施是否是“民主社会所必需的”时，法院将综合案件的整体情况，考虑国家干预的理由是否相关和充分、国家干预是否具备合法目的。

In this connection, the Court will take into account that the protection of personal data, not least medical data, is of fundamental importance to a person’s enjoyment of his or her right to respect for private and family life as guaranteed by Article 8 of the Convention (art. 8). Respecting the confidentiality of health data is a vital principle in the legal systems of all the Contracting Parties to the Convention. It is crucial not only to respect the sense of privacy of a patient but also to preserve his or her confidence in the medical profession and in the health services in general.

在这一点上，法院将考虑保护个人数据，特别是医疗数据，对个人享有《公约》第8条所保障的尊重私人和家庭生活权利的重要性。尊重健康数据的保密性是《公约》缔约国法律制度中的一项重要原则。它不仅对尊重病人的隐私权至关重要，而且对维护病人对医疗行业和健康服务的信心也意义重大。

Without such protection, those in need of medical assistance may be deterred from revealing such information of a personal and intimate nature as may be necessary in order to receive appropriate treatment and, even, from seeking such assistance, thereby endangering their own health and, in the case of transmissible diseases, that of the community.

如果缺少这种保护，那些需要医疗援助的人就可能不敢透露治疗所需的个人私密信息，甚至不敢寻求这种援助，从而危及他们自己的健康。更有甚者，当他们感染了传染性疾病时，将危及整个社区的健康。

The domestic law must therefore afford appropriate safeguards to prevent any such communication or disclosure of personal health data as may be inconsistent with the guarantees in Article 8 of the Convention.

因此，国内法必须提供适当的保障措施，防止任何可能不符合《公约》第8条所保障的个人健康数据的传播或泄露。

At the same time, the Court accepts that 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.

同时，法院承认，病人和社区在保护医疗数据秘密性上的整体利益，可能会比犯罪调查、起诉和法庭诉讼程序的公开方面的利益更为重要。

（图片来源于网络）

(i) The orders requiring the applicant’s doctors and psychiatrist to give evidence

要求申请人的医生和精神病专家提供证据的命令

As regards the orders requiring the applicant’s doctors and psychiatrist to give evidence, the Court notes that the measures were taken in the context of Z availing herself of her right under Finnish law not to give evidence against her husband. The object was exclusively to ascertain from her medical advisers when X had become aware of or had reason to suspect his HIV infection. Their evidence had the possibility of being at the material time decisive for the question whether X was guilty of sexual offences only or in addition of the more serious offence of attempted manslaughter in relation to two offences committed prior to 19 March 1992, when the positive results of the HIV test had become available. There can be no doubt that the competent national authorities were entitled to think that very weighty public interests militated in favour of the investigation and prosecution of X for attempted manslaughter in respect of all of the five offences concerned and not just three of them.

关于要求申请人的医生和精神病专家提供证据的命令，法院指出，这些措施是在Z根据芬兰法律行使不提供不利于其丈夫的证据的权利的情形下采取的，其目的是从她的医疗顾问那里确定X何时认识到或怀疑自己感染了艾滋病毒。他们的证据可能用于在审判阶段判断X是仅构成性侵犯罪，还是同时构成更严重的故意杀人罪（这与1992年3月19日之前所犯的两起罪行有关，当时X的艾滋病毒检测结果呈阳性）。毫无疑问，国家主管部门有权认为，重大的公共利益会对调查和起诉X涉及故意杀人的全部5项罪行（而非3项）产生影响。

In view of the above factors, in particular the confidential nature of the proceedings against X, as well as their highly exceptional character, the Court is not persuaded by the applicant’s argument that the various orders to give evidence were likely to have deterred potential and actual HIV carriers in Finland from undergoing blood tests and from seeking medical treatment.

鉴于上述原因，特别是考虑到针对X的诉讼程序的保密性和极为特殊的性质，法院无法采纳申请人的观点，即各种作证命令可能会阻止芬兰潜在和实际的艾滋病毒携带者接受血液检测和医学治疗。

In the light of the foregoing, the Court finds that the various orders requiring the applicant’s medical advisers to give evidence were supported by relevant and sufficient reasons which corresponded to an overriding requirement in the interest of the legitimate aims pursued. It is also satisfied that there was a reasonable relationship of proportionality between those measures and aims. Accordingly, there has been no violation of Article 8 (art. 8) on this point.

如上所述，法院认为，要求申请人的医疗顾问提供证据的各项命令都具有相关和充分的理由，这些理由达到了追求合理目的时所需的压倒性的标准。并且，这些措施与目标之间存在合理的比例关系。因此，在这一问题上不存在违反《公约》第8条的情形。

(ii) Seizure of the applicant’s medical records and their inclusion in the investigation file

在调查中获取申请人的医疗记录及其包含的材料

The seizure of the applicant’s medical records and their inclusion in the investigation file were complementary to the orders compelling the medical advisers to give evidence. Like the latter measures, the former were taken in the context of the applicant refusing to give evidence against her husband and their object was to ascertain when X had become aware of his HIV infection or had reason to suspect that he was carrying the disease. They were based on the same weighty public interests.

获取调查档案中申请人的医疗记录及其包含的材料是对要求医疗顾问提供证据这一命令的补充。与后一项措施一样，前者也是在申请人拒绝提供不利于其丈夫的证据的情况下采取的，其目的是确定X何时认识到或怀疑自己感染了艾滋病毒。这些措施都是基于同样重要的公共利益而采取的。

Furthermore, they were subject to similar limitations and safeguards against abuse. The substantive conditions on which the material in question could be seized were equally restrictive . More importantly, the material had been submitted in the context of proceedings held in camera, and the City Court had decided that the case documents should be treated as confidential, which measure was protected largely by the same rules and remedies as the witness statements.

此外，在防止权力滥用方面，它们受到类似的限制和保护。获取相关材料的实质性条件也同样具有限制性。更重要的是，这些材料已经在有监控录像的庭审中被提交，并且城市法院已经决定将涉案文件作为机密处理，这些措施受到与证人证言相同的规则和救济的保护。

It is true, however, that the seizure, unlike the taking of evidence from the doctors and psychiatrist, had not been authorised by a court but had been ordered by the prosecution.

然而，与向医生和精神病专家取证不同的是，这次取证确实没有得到法院的授权，而是根据检方的命令进行的。

Nevertheless, under the terms of the relevant provision in chapter 4, section 2 (2), of the Coercive Means of Criminal Investigation Act, a condition for the seizure of the medical records concerned was that the applicant’s doctors would be "entitled or obliged to give evidence in the pre-trial investigation about the matter contained in the document[s]" . The legal conditions for the seizure were thus essentially the same as those for the orders on the doctors to give evidence.

尽管如此，根据《刑事侦查措施法案》第4章第2条第2款的规定，获取相关医疗记录的条件是申请人的医生“有权或有义务在初审中就文件所载事项提供证据”。因此，获取文件与命令医生提供证据所应满足的法律条件是基本相同的。

Furthermore, prior to the seizure of the documents, the City Court had already decided that at least two of the doctors should be heard, whilst it required all the other doctors to give evidence shortly afterwards. The day following the seizure, the City Court, which had power to exclude evidence, decided to include all the material in question in its case file. In addition, as already noted, the applicant had the possibility of challenging the seizure before the City Court.

此外，在获取文件之前，城市法院已经决定至少要听取两名医生的证言，但不久后法院要求其他所有医生也提供证据。取得文件后的第二天，基于排除证据的权利，城市法院决定将所有相关材料都纳入案卷。此外，如前所述，申请人有向城市法院对获取材料的行为提出质疑的可能。

Therefore, the Court considers that the fact that the seizure was ordered by the prosecution and not by a court cannot of itself give rise to any misgivings under Article 8 (art. 8).

因此，法院认为，由检方而非法院下令获取材料这一事实本身并不能引起违反《公约》第8条的任何疑虑。

Therefore, the Court considers that the seizure of the applicant’s medical records and their inclusion in the investigation file were supported by relevant and sufficient reasons, the weight of which was such as to override the applicant’s interest in the information in question not being communicated. It is satisfied that the measures were proportionate to the legitimate aims pursued and, accordingly, finds no violation of Article 8 (art. 8) on this point either.

因此，法院认为，获取调查文件中申请人的医疗记录及其包含的材料具有相关和充分的理由，其所包含的利益超过了申请人具有的相关争议性信息不被提交的利益。这些措施与所追求的合理目标是相称的，因此法院认为在这一点上不存在对《公约》第8条的违反。

(iii) Duration of the order to maintain the medical data confidential

维持医疗数据保密性命令的持续时间

As regards the complaint that the medical data in issue would become accessible to the public as from 2002, the Court notes that the ten-year limitation on the confidentiality order did not correspond to the wishes or interests of the litigants in the proceedings, all of whom had requested a longer period of confidentiality.

关于2002年起公众就可以查阅涉案医疗数据的申诉，法院指出，保密命令的10年期限并不符合当事人的意愿和诉讼利益，他们都提出了延长保密期限的要求。

The Court is not persuaded that, by prescribing a period of ten years, the domestic courts attached sufficient weight to the applicant’s interests. It must be remembered that, as a result of the information in issue having been produced in the proceedings without her consent, she had already been subjected to a serious interference with her right to respect for her private and family life. The further interference which she would suffer if the medical information were to be made accessible to the public after ten years is not supported by reasons which could be considered sufficient to override her interest in the data remaining confidential for a longer period. The order to make the material so accessible as early as 2002 would, if implemented, amount to a disproportionate interference with her right to respect for her private and family life, in violation of Article 8 (art. 8).

法院并不认为，国内法院规定的十年期限对申请人的利益给予了充分的保护。需要特别指出的是，案件中的信息是在未经申请人同意的情况下获取的，她的私人和家庭生活受到尊重的权利已经受到了严重的干涉。如果10年后向公众公开这些医疗信息，她的权利将会受到进一步的干涉。但公开数据的理由并没有压倒长期保密数据的理由。早于2002年就公开相关材料的命令一经实行，将构成对她私人和家庭生活受到尊重的权利的不相称的干涉，从而违反了《公约》第8条。

However, the Court will confine itself to the above conclusion, as it is for the State to choose the means to be used in its domestic legal system for discharging its obligations under Article 53 of the Convention (art. 53).

不过，法院将仅限于作出上述结论，因为应由国家选择国内法律体系中的相关途径来履行《公约》第53条所规定的义务。

(iv) Publication of the applicant’s identity and health condition in the Court of Appeal’s judgment

在上诉法院的判决中公开申请人的身份和健康状况

Finally, 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.

最后，法院必须审查是否有足够的理由证明，上诉法院在判决书中向媒体透露申请人的身份和患艾滋病情况的行为是合理的。

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.

根据芬兰的相关法律，上诉法院有以下自由裁量权：第一，在判决书中不提及能够识别申请人身份的任何名字；第二，在一定时期内对完整判决保密，而只公布删减后的推理、执行部分以及所适用法律的说明。实际上，城市法院正是按照这些规则公布了判决，因此没有引起任何负面评论。

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.

不管申请人是否明确要求上诉法院不披露她的身份和医疗状况，法院已经被X的律师告知，她希望将保密令的期限延长到10年以后。由此可见，她反对向公众披露有关信息。

In these circumstances, and having regard to the considerations mentioned in paragraph 112 above, 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).

在这种情况下，并综合上文第112段中提到的考量因素，法院并没有找到强有力的理由来支持上诉法院公开信息的行为。因此，相关信息的公开侵犯了申请人受《公约》第8条保障的私人和家庭生活受到尊重的权利。

（图片来源于网络）

(v) Recapitulation

法院结论

The Court thus reaches the conclusions that there has been no violation of Article 8 of the Convention (art. 8) (1) with respect to the orders requiring the applicant’s medical advisers to give evidence or (2) with regard to the seizure of her medical records and their inclusion in the investigation file.

法院因此得出结论，以下两点没有违反《公约》第8条：(1) 要求申请人的医疗顾问提供证据的命令；(2)获取她的医疗记录并将其列入调查档案。

On the other hand, it finds (3) that making the medical data concerned accessible to the public as early as 2002 would, if implemented, give rise to a violation of that Article (art. 8) and (4) that there has been a violation thereof (art. 8) with regard to the publication of the applicant’s identity and medical condition in the Court of Appeal’s judgment.

然而，法院判决以下两点违反了《公约》第8条：(3)执行在2002年向公众公开有关医疗数据的措施；(4) 上诉法院在判决书中公布申请人的身份和医疗状况。

[1] 条款翻译参见欧洲人权法院官方提供的条约中文版本，https://www.echr.coe.int/european-convention-on-human-rights

原文链接：

https://hudoc.echr.coe.int/eng#{%22appno%22:[%2222009/93%22],%22itemid%22:[%22001-58033%22]}