Disclosure of being HIV positive in a military service exemption certificate breached privacy rights

JUDGMENT

P.T. v. The Republic of Moldova 26.05.2020  (no. 1122/12)

see here 

SUMMARY

The case concerned disclosure of the applicant’s HIV positive status in a certificate exempting him
from military service. He complained that he had had to show the certificate when renewing his
identification papers in 2011 and in certain other situations, such as whenever he applied for a new
job.

The Court found in particular that the Moldovan Government had not specified which “legitimate
aim” of Article 8 of the Convention had been pursued by revealing the applicant’s illness. Moreover,
they had not explained why it had been necessary to include sensitive information about the
applicant in a certificate which could be requested in a variety of situations where his medical
condition had been of no apparent relevance. Such a serious interference with his rights had been
disproportionate

PROVISION

Article 8

PRINCIPAL FACTS

The applicant, Mr P.T., is a Moldovan national who was born in 1978 and lives in Sângera (the
Republic of Moldova). He is HIV positive.

In July 2011 the Military Centre issued Mr P.T. with a certificate exempting him from military service,
after doctors confirmed his illness. The certificate was based on a model set out in Government
decision no. 864 of 17 August 2005.

When renewing his identity card in August 2011, he was obliged to show the exemption certificate.
In 2012 the Moldovan Constitutional Court handed down a ruling finding that such exemption
certificates disproportionately interfered with the right to protection of private life because they
disclosed confidential information on a person’s illness to third parties, including potential
employers.

THE DECISION OF THE COURT…

The Government argued that the applicant had not exhausted all domestic remedies as he had not
brought any proceedings before the Moldovan courts.

The Court found that although there was a remedy available in theory and in practice for the
applicant to complain, as shown in the case brought by B., which was very similar to that of the
applicant, it had not been effective. In particular, the content of the exemption certificate was
expressly dictated by Government decision no. 864, which was mandatory and could not be
reviewed by the courts. Therefore any court action aimed at changing the certificate was bound to
fail, as confirmed by the outcome of B.’s two court actions.

The Court therefore dismissed the Government’s objection and declared the applicant’s complaint
admissible.

It then went on to find, like the Constitutional Court, that the inclusion of medical data in a
certificate which was to be provided to third parties had constituted an interference with the
applicant’s rights protected under Article 8 of the Convention. That interference had been in
accordance with the domestic law, namely Government decision no. 864, at the time the applicant
had lodged his application.

However, neither the Government nor the authorities had referred to any specific legitimate aim of
such interference with the applicant’s rights. In fact, revealing the applicant’s illness did not appear
to have a rational basis or connection to any of the legitimate aims foreseen in Article 8 of the
Convention.

The Court found, moreover, that the personal medical data in the certificate had not been
sufficiently protected from unnecessary disclosure. In particular, third parties were allowed to find
out the type of illness which had exempted the applicant from military service, even if they had no
ostensible interest in having access to that information.

Indeed, the Government had not explained why it had been necessary to include such sensitive
information in a certificate which could be requested in a variety of situations where the applicant’s
medical condition had been of no apparent relevance, such as when applying for employment.
Accordingly, the interference with the applicant’s right had been disproportionate, in violation ofArticle 8 of the Convention.

Just satisfaction (Article 41)

The Court held that the Republic of Moldova was to pay the applicant 4,000 euros (EUR) in respect
of non-pecuniary damage and EUR 1,500 in respect of costs and expenses.

 


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