European Court of Human Rights

 

 

SECOND SECTION

CASE OF E.B. v. THE REPUBLIC OF MOLDOVA

(Application no. 41542/13)

 

 

 

 

 

 

JUDGMENT

STRASBOURG

14 December 2021

 

This judgment is final but it may be subject to editorial revision.

In the case of E.B. v. the Republic of Moldova,

The European Court of Human Rights (Second Section), sitting as a Committee composed of:

          Egidijus Kūris, President,
          Valeriu Griţco,
          Branko Lubarda, judges,
and Hasan Bakırcı, Deputy Section Registrar,

Having regard to:

the application no. 41542/13 against the Republic of Moldova lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Moldovan national, Ms E.B. (“the applicant”), on 14 May 2013;

the decision to give notice to the Moldovan Government (“the Government”) of the complaint under Article 8 of the Convention;

the parties’ observations;

Having deliberated in private on 23 November 2021,

Delivers the following judgment, which was adopted on that date:

INTRODUCTION

1.  The application concerns disclosure of the applicant’s sensitive medical information.

THE FACTS

2.  The applicant, who was granted legal aid, was born in 1975 and lived in Bălți. After her death in November 2015 her son, I.B., expressed his wish to continue the application in her stead. The applicant was represented by Mr A. Lungu, a lawyer practising in Durlești.

3.  The Government were represented by their Agent, Mr O. Rotari.

4.  The facts of the case may be summarised as follows.

5.  On 8 June 2010 the mobile group of the Bălți Social Assistance and Family Protection Department (hereinafter called “the Department”), consisting of L.D. and R.C., visited the applicant’s home. They had been alerted by the applicant’s brother about the serious state of health of one of the applicant’s children, A.B. The applicant’s brother lived in the same house and let the group inside. Shortly thereafter the applicant returned home. As A.B.’s state of health was serious (very low body weight, high fever), the group decided to remove him urgently from his family and take him to hospital for treatment. The applicant strongly opposed this decision, which resulted in a quarrel between her and L.D. The dispute started in the applicant’s house and continued outside, where a neighbour (A.) witnessed it. The applicant’s brother and his partner L.C. also witnessed it.

6.  During the quarrel outside, L.D. called the applicant a ‘спидная’ (a pejorative word which roughly translates as “the one ill with HIV”). The applicant and her children were indeed ill with HIV.

7.  On 8 November the applicant lodged a court action against the Department seeking recognition of the fact that its agent had disclosed medical information about her and claiming compensation.

8.  According to the applicant’s brother’s testimony before the court, at a certain point during the quarrel L.D. told the applicant: “You ‘спидная’, take your child and get into the car. You yourself need treatment”. His partner had also heard the word and added that, prior to the incident, she had not been aware of the applicant’s illness.

9.  A. a neighbour who witnessed the quarrel outside the house, testified in court that during the events she had approached L.D. and asked about the boy. According to her, L.D. told her, inter alia, that A.B. had been ill with HIV since birth. She added that she had heard rumours about that before but was not aware of the official diagnosis. According to the minutes of the relevant hearing, A. was not asked whether she had known about the applicant’s illness before the events of 8 June 2011 and she did not say anything about that.

10.  On 20 October 2011 the Bălți District Court rejected the applicant’s claim as unfounded. The court found that, prior to the visit to the applicant’s house on 8 June 2011, L.D. had not had access to the applicant’s medical file and had not been aware of the applicant’s illness. It also found that the witnesses (the applicant’s brother and his partner, as well as A.) had been told by the applicant of her illness before the incident. The court also found that on 10 June 2011 the Department asked a hospital, in the absence of the parents’ participation since they had insufficient means, to treat the applicant’s child, A.B., “who was urgently admitted to the hospital with an HIV diagnosis”. On 10 June 2011 the hospital informed the Department of A.B.’s state of health and noted that his main, chronic illness was codified in accordance with the legal requirements.

11.  The District Court’s above judgment was upheld by the Bălți Court of Appeal, on 12 June 2012, and by the Supreme Court of Justice, on 14 November 2012.

RELEVANT LEGAL FRAMEWORK

12.  In accordance with Article 13 of Law no. 17-XVI regarding the protection of personal data (in force at the time of the events), personal data holders, as well as third parties who had obtained access to personal data, had to ensure the confidentiality of such data, save when the person concerned by the data requested access to it or if the data was accessible to the general public. Similar provisions could be found in Article 12 of Law no. 263-XVI (in force since 30 June 2006) on the rights and responsibilities of the patient.

THE LAW

I.        ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION

13.  The applicant complained of the disclosure to the public of sensitive data about her illness, contrary to the requirements of Article 8 of the Convention, which reads as follows:

“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.”

A.    Admissibility

1.     As to the locus standi of Mr I.B.

14.  Following the introduction of the application, Mrs E B passed away and her son, I.B., expressed the wish to pursue the application.

15.  In its case‑law, the Court has differentiated between applications where the direct victim has died after the application was lodged with the Court and those applications where he or she had already died before the lodging of the application. Where the applicant has died after the application was lodged, the Court has accepted that the next‑of‑kin or heir may in principle pursue the application, provided that he or she has sufficient interest in the case (see Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romania [GC], no. 47848/08, § 97, ECHR 2014 and Mifsud v. Malta, no. 62257/15, § 39, 29 January 2019).

16.  Having regard to the circumstances of the present case, the Court accepts that I.B., the son and heir of the direct victim (who lodged the application before her death), has a legitimate interest in pursuing the application in the late applicant’s stead. It will therefore continue dealing with the case at her request. For practical reasons it will, however, continue to refer to Mrs E.B. as the applicant in the present judgment.

2.     The Government’s objection concerning exhaustion of domestic remedies

17.  The Government argued in essence that the applicant had failed to exhaust available domestic remedies. In particular, she had not lodged a court action against L.D. for defamation or a complaint to the police for insult.

18.  The Court reiterates that, in the event of there being a number of domestic remedies which an individual can pursue, that person is entitled to choose, for the purpose of fulfilling the requirement of exhaustion of domestic remedies, a remedy which addresses his or her essential grievance (see, for instance, Nicolae Virgiliu Tănase v. Romania [GC], no. 41720/13, § 177, 25 June 2019). Since the complaint about disclosure of sensitive medical data was one of the remedies that could be used, the applicant did not have to start any alternative court action.

Therefore, the Government’s objection must be dismissed.

19.  The Court notes that this complaint is neither manifestly ill-founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible.

B.    Merits

1.     The parties’ submissions

20.  The applicant submitted that by publicly revealing her illness, L.D. had exposed her and her family to discrimination on the part of certain persons in their neighbourhood. As a result her children were called “спидные” (“those ill with HIV”) and were avoided, they could not go to the local shop and they had to move to another place to avoid such treatment.

21.  The Government condemned L.D.’s choice of words and conceded that they were insulting. However, as established by the domestic courts, L.D. had not had access to the applicant’s medical file and thus could not disclose its contents. In the absence of any disclosure, there could be no violation of Article 8 of the Convention.

2.     The Court’s assessment

(a)    General principles

22.  The Court reiterates that systematic storage and other use of information relating to an individual’s private life by public authorities entails important implications for the interests protected by Article 8 of the Convention and thus amounts to interference with the relevant rights (see, in particular, Rotaru v. Romania [GC], no. 28341/95, § 46, ECHR 2000‑V; and S. and Marper v. the United Kingdom [GC], nos. 30562/04 and 30566/04, § 67, ECHR 2008). This is all the more true when the processing affects highly intimate and sensitive categories of information, notably information relating to the physical or mental health of an identifiable individual (see, in particular, Z. v. Finland, 25 February 1997, § 95, Reports of Judgments and Decisions 1997‑I; Y.Y. v. Russia, no. 40378/06, § 38, 23 February 2016, Surikov v. Ukraine, no. 42788/06, § 70, 26 January 2017 and P.T. v. the Republic of Moldova, no. 1122/12, § 26, 26 May 2020).

27.  In addition to being lawful, the interference with the right to protection of personal data must also pursue a legitimate aim and be “necessary in a democratic society”. 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 the measures were proportionate to the legitimate aims pursued (see, for example, Peck v. the United Kingdom, no. 44647/98, § 76, ECHR 2003‑I). In this latter respect the Court has noted that, regard being had to the fundamental importance of data protection for the effective exercise of one’s right to respect for private life, the margin of appreciation afforded to the member States in designing their respective legislative and administrative frameworks in this sphere is rather limited (see, in particular, Peck, cited above, §§ 77-78; S. and Marper, cited above, §§ 102‑103, ECHR 2008; Surikov, cited above, § 73, and P.T. v. the Republic of Moldova, cited above, § 27).

23.  The fact that information is already in the public domain does not necessarily remove the protection of Article 8 of the Convention, especially if the person concerned neither revealed the information nor consented to its disclosure (Hájovský v. Slovakia, no. 7796/16, § 48, 1 July 2021). Indeed, even with respect to a further dissemination of “public information”, the Court has found that the interest in publication of that information had to be weighed against privacy considerations (see Von Hannover v. Germany, no. 59320/00, §§ 74-75 and 77, ECHR 2004‑VI). This is so because privacy is also about preventing intrusion. Thus, notwithstanding that the information in question was already known to the public, a further dissemination of such “public information” had still to be weighed against the applicant’s right to privacy (N.Š. v. Croatia, no. 36908/13, § 100, 10 September 2020 and Hájovský, cited above, § 48).

(b)    Application of the above principles to the present case

24.  The Court notes that the storage and other use of sensitive information about a person’s health is necessarily covered by the protection afforded by Article 8 (see paragraph 22 above).

25.  In the present case, the Government argued that there had been no interference with the applicant’s Article 8 rights since no disclosure of medical information had taken place: L.D. had had no access to the applicant’s medical file and thus could not disclose something which she did not know. Therefore, the only meaning which could be attributed by L.D. to the word which she had used was to insult the applicant, without any specific medical connotation.

26.  The Court notes that, besides calling her “the one ill with HIV”, L.D. also added that the applicant herself needed treatment (see paragraph 8 above). It considers that, in view of the specific reference to both the applicant’s illness and the needed to obtain treatment, the expression used could not be regarded as simply an insult. Anyone not aware of the applicant’s illness would have reasonably understood to what illness L.D. had referred. The fact that, during the same event, L.D. shared with a neighbour further information about the applicant’s child being ill since birth with the same illness (see paragraph 9 above), confirms that she held certain medical information about the applicant’s family and was willing to disclose it to third persons without any apparent reason.

27.  Moreover, as established by the first-instance court (see paragraph 10 above), the Department in which L.D. worked knew two days after the event of the precise diagnosis of the applicant’s child, even though on the same day the hospital responsible for treating him released information about his state of health in a codified manner, and thus without a specific diagnosis. The domestic courts never verified from when the Department had known about A.B.’s precise diagnosis and on what legal basis, and whether accessing such information about the applicant was similarly possible.

28.  In any event, the Court considers that it is of lesser importance whether L.D. had had access to the applicant’s medical file or had found out such information from other sources: even information which is already in the public domain deserves protection under Article 8 of the Convention (see paragraph 23 above). It attaches particular importance to the fact that the information about the applicant’s state of health was disclosed in a public place, where any number of passers-by and neighbours could have heard it. Therefore, there was a real risk of this information reaching persons other than the applicant’s brother, in whom she had confided (there being no evidence that she had told anyone else about her illness, since both A. and L.C. stated that they had not known about the illness prior to the incident, see paragraphs 8 and 9 above), and thus being shared in a manner which she could not have foreseen (Peck, cited above, § 60). In such circumstances, the Court finds it established that L.D. disclosed sensitive medical information about the applicant’s state of health, regardless of how she had come across that information.

29.  There was thus an interference by an agent of a State service with the applicant’s right to protection of her private life. Any interference with an individual’s Article 8 rights can only be justified under Article 8 § 2 if it is in accordance with the law, pursues one or more of the legitimate aims to which that paragraph refers and is necessary in a democratic society in order to achieve any such aim.

30.  The Court notes that the Government did not refer to any legal provision allowing the representative of one of the State’s services (the social protection agency in the present case) to disclose publicly sensitive personal medical data in circumstances such as those under consideration. On the contrary, such disclosure would appear to be in breach of an express legal obligation (see paragraph 12 above), given the absence of evidence that the applicant’s illness was known to the general public. Therefore, the interference with the applicant’s rights guaranteed under Article 8 was not “in accordance with the law”.

31.  While the conclusion in the preceding paragraph is sufficient for the Court to find a violation of Article 8 of the Convention, it cannot but mention that the Government did not make any submissions as to which “legitimate aim” could have been pursued by disclosing the applicant’s medical information to the public (see P.T. v. the Republic of Moldova, no. 1122/12, § 29, 26 May 2020), nor as to why such a disclosure was “necessary in a democratic society”.

32.  There has accordingly been a violation of Article 8 of the Convention.

II.     APPLICATION OF ARTICLE 41 OF THE CONVENTION

33.  Article 41 of the Convention provides:

“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”

A.    Non-pecuniary damage

34.  The applicant’s heir claimed 12,000 euros (EUR) in respect of costs and expenses. He noted that HIV-positive persons were amongst the most discriminated against groups in Moldova and that their family was subjected to discrimination following the disclosure of information about their illness.

35.  The Government considered that the amount claimed was excessive in the light of the case-law in similar cases. Moreover, no compensation was due in the absence of a breach of any Convention rights.

36.  Ruling on an equitable basis, the Court awards the applicant’s heir EUR 4,000 in respect of non‑pecuniary damage, plus any tax that may be chargeable to the applicant.

37.  The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.

B.    Costs and expenses

38.  The applicant’s heir claimed EUR 2,300 in respect of costs and expenses. He relied on a list of hours worked on the case (46 hours at an hourly rate of EUR 50).

39.  The Government argued that no payment was due in the absence of a contract between the applicant and the lawyer.

40.  The Court notes that the applicant had indeed failed to submit any evidence indicating the presence of a contract with her representative. Moreover, given that she received legal aid from the Council of Europe, the Court does not make any award in this respect.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1.      Declares the application admissible;

2.      Holds that there has been a violation of Article 8 of the Convention;

3.      Holds

(a)  that the respondent State is to pay the applicant, within three months, EUR 4,000 (four thousand euros), to be converted into the currency of the respondent State at the rate applicable at the date of settlement;

(b)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

4.      Dismisses the remainder of the applicant’s claim for just satisfaction.

Done in English, and notified in writing on 14 December 2021, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

                       

             Hasan Bakırcı                                                     Egidijus Kūris
          Deputy Registrar                                                      President