Ms Colak complained about the fact that she had not been informed by her doctor that her partner was suffering from AIDS, a request explicitly made by the partner who asked the doctor not to disclose. It was revealed to Ms Colak after her partner’s death that her partner had died of AIDS. She was soon diagnosed as HIV positive. However, she did not receive any damages on the national level, amongst others because an expert held that it was probable that the applicant had already been infected before her partner told their common doctor. The applicant relied on Article 2 (right to life), Article 8 (right to respect for private life), and Article 6 ECHR (right to a fair trial). No violations of the Convention were found.

With regard to the applicability of Article 2 the Court reiterates that the first sentence of that Article requires the State not only to refrain from the “intentional” taking of life, but also to take appropriate steps to safeguard people’s lives. Moreover, the State’s positive obligations under Article 2 require an effective independent judicial system so that the cause of death of patients in the care of the medical profession can be determined and those responsible made accountable.

An event, however, which does not result in death may only in exceptional circumstances disclose a violation of Article 2 of the Convention. These may be found in a lethal disease. Having regard to the particular circumstances of the present case, the Court starts on the assumption that the present case raises an issue as to the applicant’s right to life.

The Court then reiterates that the positive obligations under Article 2 may be satisfied if the legal system affords victims a remedy in the civil courts, either alone or in conjunction with a remedy in the criminal courts, enabling any liability of the physicians concerned to be established and any appropriate civil redress, such as an order for damages, to be obtained. The court also accepts that a generic approach to conflicts of interest in Article 34 of the German Criminal Code, is sufficient in dealing with conflicts of interest as occur in the case of a doctor’s duty of confidentiality to patients as against the duty to prevent the transmission of HIV. 

The Court concludes that the German legal system provides for legal remedies which, in general, meet the requirements of Article 2 as they afford parties injured through medical negligence both criminal and civil compensation proceedings.

In conclusion, the domestic authorities did not fail to comply with their positive obligations owed towards the applicant under Article 2 of the Convention. For the same reasons, the Court considers that there has not been a violation of the applicant’s rights under Article 8 of the Convention.

Concerning violation of Article 6, the Court reiterates that it is not its function to deal with errors of fact or law allegedly committed by a national court unless they may have infringed rights and freedoms protected by the Convention. Further, while Article 6 guarantees the right to a fair hearing, it does not lay down any rules on the admissibility of evidence or the way it should be assessed - they are primarily matters for regulation by national courts.

In so far as the applicant complained about the domestic courts’ refusal to apply a less strict rule on the burden of proof, the Court is called upon to examine whether the concept of equality of arms, being an aspect of the right to a fair trial guaranteed by Article 6, was complied with. The principle of equality of arms implies that each party, in litigation involving opposing private interests, must be afforded a reasonable opportunity to present his case – including his evidence – under conditions that do not place him at a substantial disadvantage vis-à-vis his opponent. Nevertheless, it does not imply a general right to a reversal of the burden of proof.

The Court found that the provisions of German civil law relating to the applicant’s compensation claims were interpreted and applied in the spirit of the Convention. The holding back or destruction of the medical files occurred only after termination of the compensation proceedings and the medical files had been available to the courts throughout. Hence, that could not have an impact on the outcome of the proceedings. Even taking into account that patients may face difficulties in proving that medical treatment caused the damage suffered, the Court finds that the applicant was not placed at a substantial disadvantage vis-à-vis the defendant and that the principle of equality of arms was complied with.

In conclusion, the Court considers that, taken as a whole, the proceedings in issue were fair for the purposes of Article 6.