Published on 12 April 2021

FIFTH SECTION

Application no. 72777/13 Yuriy Olegovych PINCHUK against Ukraine lodged on 7 November 2013 communicated on 25 March 2021

STATEMENT OF FACTS

The applicant, Mr Yuriy Olegovych Pinchuk , is a Ukrainian national, who was born in 1974 and lives in Zhytomyr.

The facts of the case, as submitted by the applicant, may be summarised as follows.

On 22 October 2012 the applicant, a police officer at the material time, was criticised during a police unit meeting for his systematic underperformance.

On 24 October 2012 the applicant was hospitalised in Zhytomyr City Hospital with a hypertensive crisis.

From that date and until 29 December 2012 he underwent a sequence of intermittent inpatient and outpatient treatment sessions in that hospital and in the Zhytomyr Regional Hospital.

On 30 October 2012 officer O.T., one of the applicant ’ s superiors, requested the Minister of Interior to decrease the applicant ’ s monthly allowance referring to his systematic underperformance.

On 25 and 29 October and 5 and 16 November 2012 officer O.M., another applicant ’ s superior, requested the hospitals in which the applicant was undergoing treatment at the material time to confirm the fact that he was undergoing treatment and to disclose his exact diagnosis.

On various dates the two hospitals provided their responses including , in particular, a detailed description of the applicant ’ s medical condition and diagnosis.

On 19 November 2012 the Minister of Interior signed an order decreasing the applicant ’ s monthly allowance, taking into account his systematic underperformance.

In January 2013 the applicant lodged a civil claim challenging the decrease of the allowance and alleging that his superiors had unlawfully collected his medical data in October and November 2013.

In April 2013 the applicant, having retired from the police force, added to his initial claim seeking further payments in connection with his retirement.

On 21 May 2013 the Zhytomyr District Administrative Court partly allowed and partly dismissed the applicant ’ s claims which concerned the payments due to him from the police force. His data collection complaint was dismissed. The relevant reasoning reads as follows:

“Application by the defendant, as [the applicant ’ s] employer, to medical establishments with a view to determining the plaintiff ’ s state of health [and] the reason of [his] absence on duty does not qualify as unlawful collection and use of his personal data, since such an application derives from exercising the employer ’ s function to ensure observance of service discipline.”

The applicant appealed, claiming entitlement to higher remuneration and insisting that collection of his medical data, especially insofar as it concerned his medical diagnosis, had been in breach of Article 39-1 of the 1992 Framework Healthcare Act.

On 25 July 2013 the Zhytomyr Regional Court of Appeal dismissed the applicant ’ s appeal. In response to his data collection complaint, the court reiterated the reasoning adduced by the first-instance court, adding the following statement:

“It has neither been demonstrated [by the plaintiff] nor established by the court that the [medical] data at issue was used by the defendants for the purposes unrelated to the plaintiff ’ s service . ”

On 6 August 2013 the Higher Administrative Court rejected the applicant ’ s request for leave to appeal on points of law.

Section 39-1 of the 1992 Law no. 2801-XII on Guidelines with respect to the legislation of Ukraine concerning health protection (“The Framework Healthcare Act”) stipulates , in particular, as follows:

Section 39-1. Right to confidentiality of information concerning one ’ s state of health

“Patients shall have right to confidentiality of information concerning their state of health, the fact of application for medical assistance, [and/or their] diagnosis, as well as [the confidentiality of] information obtained in the course of their medical examination.

It shall be prohibited to demand and to supply information concerning [patients ’ ] diagnosis and treatment methods by/to [their] employers or educational institutions.”

COMPLAINTS

The applicant complains that his employer had collected his sensitive medical data in breach of the law and that the national courts had failed to adduce relevant and sufficient reasons for dismissing his allegation. The applicant refers to Articles 6 and 8 of the Convention in respect of these complaints.

QUESTIONS TO THE PARTIES

1. Did the applicant have a fair hearing in the determination of his civil rights in accordance with Article 6 of the Convention? In particular, did the national courts provide sufficient reasoning for rejecting his allegation that his employer had unlawfully collected his medical data (see, for example, Surikov v. Ukraine , no. 42788/06, §§ 102-03, 26 January 2017)?

2. Has there been a violation of the applicant ’ s right to respect for his private life, contrary to Article 8 of the Convention, on account of the collection of his medical data by his employer ( see, for example, Radu v. the Republic of Moldova , no. 50073/07, §§ 27-32, 15 April 2014; Y.Y. v. Russia , no. 40378/06, §§ 52-60, 23 February 2016; and Mockutė v. Lithuania , no. 66490/09 , §§ 102-06, 27 February 2018)?