DISSENTING OPINION OF JUDGE MYJER

1. Just to be clear, I find it most unfortunate for the applicant that he was discovered to be HIV-positive. But I voted against finding any violation in his case even so.

2. As far as the alleged violation of Article 3 is concerned, I am of the opinion that the majority applied the wrong standard. Let me try to explain.

It is by now an established fact that HIV is most commonly passed on from one person to another by having sex with someone infected with HIV without using a condom , or by using or shari ng needles infected with HIV. I have taken the following information from the website of the United Kingdom National Health Service , but it can be found elsewhere: HIV is not passed on easily from one person to another. The virus does not spread through the air like cold and flu viruses. HIV lives in the blood and in some body fluids. For a healthy person to get infected with HIV , one of these fluids from someone already infected with HIV has to find its way into that person ’ s blood. The body fluids that contain enough HIV to infect someone are: semen , vaginal fluids (including , but not limited to , menstrual blood) , breast milk , blood and the lining inside the anus. Other body fluids , like saliva , sweat or urine , do not contain enough of the virus to infect another person. The main pathways through which the virus enters the bloodstream are: cuts and sores in the skin , the thin lining on or inside the anus and genitals , the thin lining of the mouth and eyes. One cannot catch HIV from an infected person through kissing, or through contact with unbroken , healthy skin , through being sneezed on , through sharing baths , towels or cutlery , through using the same toilets and swimming pools , or through contact with animals or insects such as mosquitoes.

It is important to realise this , since certain other infections , such as tuberculosis , can be caused by inhaling tiny droplets of saliva from the coughs or sneezes of an infected person. In this way overcrowding in a prison can help spread tuberculosis. See for instance the documents cited in the ‘ R elevant law and other national and international documents ’ part of the Court ’ s judgment in the case of Makharadze and Sikharulidze v. Georgia (judgment of 22 November 2011).

It should also be pointed out that there is a ‘ window ’ period of approximately three months during which the infection , although present , cannot be detected.

3. From the facts in this case it is clear that upon the applicant ’ s arrival at Central Prison on 26 July 1999 his HIV test had been negative . O n 24 September 2002 – at which time the applicant was still in detention – a blood test showed him to be HIV-positive (paragraph 23).

Several scenarios occur to me , the most plausible being:

a. the initial test was performed during the ‘ window ’ period and the applicant had been infected before his arrest (a possibility suggested by the Government – paragraph 24);

b. the applicant was infected in detention , because the prison staff used multiple-use syringes infected with HIV when taking a sample of his blood (as was claimed by the applicant);

c. the applicant was infected during his detention because of his own failure to observe the necessary caution when sharing or using needles infected with HIV (another possibility suggested by the Government);

d. the applicant was infected during his detention by way of sexual intercourse with a co-detainee who was already infected with HIV (a third possibility suggested by the Government). In this alternative a further subdivision should be made: sexual intercourse , if it occurred , might have been (1) consensual or (2) forced on the applicant (rape). In the latter hypothesis the responsibility of the Government may come into play as well. However, as the applicant did not claim that he was raped , I do not need to elaborate on that.

4. Since the first test , after the arrest , was negative , and only years later – while the applicant was still in detention – did a test show him to be HIV-positive , I accept that there is a prima facie likelihood that the infection happened while he was in detention. I am also prepared to accept that in a case like this the burden of proof shifts. It is not sufficient for the Government to point out other possible causes of the infection; they must produce evidence that they cannot be blamed and that the account given by the applicant is untrue. And that is precisely what the Government did. In the civil case instituted by the applicant , the nurse who had taken the applicant ’ s blood sample in 1999 testified before the court that single-use syringes had been used exclusively for blood tests in Central Prison since 1996 or 1997 (paragraph 28). The applicant merely state d , without any corroboration , that he kn ew for certain that in 1999 a multiple-use syringe had been used to take a sample of his blood (paragraph 29). Under these circumstances the burden shifts again and it was up to him to proffer further evidence which could cast doubt on the veracity of the nurse ’ s testimony. This he was quite unable to do. So in the end the testimony of the nurse was sufficient for the national court to accept that the Government could not be blamed , and it is sufficient for me as well.

5. I do not agree with the reasoning in the judgment that in the present case the civil proceedings did not offer the applicant a sufficient possibility to establish facts , gather evidence and find out the truth about the circumstances of his infection , that the decision to submit a criminal complaint to the Office of the Prosecutor-General was accordingly justified and that the domestic authorities had an obligation to give him access to the available criminal-law remedies (paragraph 77). The unfortunate corollary of such reasoning is this: never mind if you lose your civil case , j ust file a criminal complaint and the prosecutor has the obligation to carry out an in-depth investigation , hopefully leading to the conclusion that the final civil judgment was wrong. I find that absurd. And what should have been further investigated anyway? The applicant suggested the following lines of investigation: to find out whether the applicant ’ s partner , with whom he had lived prior to his arrest , was HIV-positive, and to question the prisoners whose blood samples had been taken on the same day as his own.

I am firmly convinced that the applicant himself could have submitted the information on his partner in the civil proceedings. And even if his partner was HIV-negative and it could be proven that she was the only person to have had sexual intercourse with the applicant in the months before he was arrested , that would not prove anything other than that the applicant was not infected before his arrest. Besides , what could be proven by questioning the other prisoners? Would they remember the type of syringes? And would their testimony be more relevant than the testimony of a professional nurse who knows the material he or she works with? Or should their medical records be examined and included in the file of the criminal investigation? What about their privacy? And even if they (or one of them) had turned out to be HIV-positive at the first test, would that prove that the nurse had been mistaken or had lied?

The only reason I can think of why , after a final civil judgment , a criminal investigation would be justified is that there we re newly discovered facts indicating that the nurse lied or may not have spoken the truth , but no such facts have been mentioned .

To conclude: it is my firm belief that after the final judgment by the civil courts , the case was closed. The Office of the Prosecutor General had no obligation to ‘ attempt to find out what happened ’ (paragraph 82).

6. I now come to the complaint that the applicant was deprived of a fair hearing when he was not transported to appeal court hearings in the civil cases against the prison authorities and against the newspaper. Here I can be brief. In paragraph 29 it is mentioned that in the amendment to his appeal he requested that his presence at the hearing be ensured. Likewise , in paragraph 43 it is mentioned that the applicant asked the appeal court when his appeal would be heard, and that he also requested that his presence at the hearing be ensured. Of course the applicant should be notified in proper time of the date of the hearing(s) , so as to be able to ask the authorities to make arrangements to have him escorted to the hearing as domestic law allows. But it cannot be the task of the court of appeal to ensure a suspect ’ s presence at the hearing , not even in the present case where the applicant expressly so requested. I could not find in the file any indication that the applicant asked the relevant (prison) authorities to organise transport and/or that his request was rejected on unreasonable or arbitrary grounds. Nor could I find any indication that under Latvian law people deprived of their liberty are prevented from attending any civil court hearing in which they themselves are a party. If that had been the case , I might have agreed with the finding of a violation.

7. As far as the possible violation of Article 8 is concerned , I do not agree with my colleagues here either. According to paragraph 36 it was the applicant who expressed his desire that the civil trial should be open to the public , as long as no photographs were taken. The defendant prison authorities objected to opening the trial to the public , considering that the case concerned sensitive material. The court nonetheless allowed the applicant ’ s request. I cannot but conclude that the applicant wanted the case he had instituted against the prison authorities to be given a great deal of media attention. He was served according to his wishes. Paragraph 37 describes how a newspaper did indeed publish an article with the lurid title ‘ Prison Doctors Accused of Injecting AIDS ’ . The newspaper also reported that it was the applicant who had instituted the proceedings , but only referr ed to him as Andris M. , describing him as a recidivist who was currently serving his prison sentence. They even added a photograph of the applicant , albeit one that had not been taken at the hearing in question. As the Government pointed out in their observations, the newspaper had obtained the photo from the internet portal of the photography agency AFI, with whom the publisher had an agreement about the use of the photos found there. It emerged that the applicant had previously consented to the inclusion of his personal photo on the site and had been aware of the risk that it might be published at some point in the future, although not in what context.

To me it sounds disingenuous for the applicant now to argue that the newspaper – which I repeat was only allowed to attend the hearing at his own express wish – invaded his privacy. This applicant cannot be compared with someone who has not consciously and intentionally submitted himself to public scrutiny. He himself asked for publicity. Did he really believe that the newspapers would only report what he wanted them to report? That the newspapers , in their oft-mentioned role of public watchdog , would only bark the way he wanted them to bark? A newspaper has its own professional duties and responsibilities , although admittedly limited in its reporting by the relevant legal provisions. The fact that Latvian data protection laws were not binding on privately published newspapers is, as far as I am concerned, not relevant in the present case. The Court has to deal with European minimum standards. Must I take it that from now on , in any other of the 47 High Contracting Parties , in a comparable civil case where the press is expressly invited by a ‘ vulnerable ’ party (and against the advice of the Government party) to be present , the press will not be permitted to publish the name or sensitive personal details of that same ‘ vulnerable ’ party – even if those details, as such, are relevant to the hearing? That cannot be right.

I do not agree that in the particular circumstances of this case the domestic courts failed to protect the applicant ’ s right to respect for his private life.

8. Oddly enough in view of the position he has taken before our Court , the applicant did not ask to be granted anonymity (Rule 47 § 3 of the Rules of Court). In the particular circumstances of the case I saw no reason to propose that the Court grant it of its own motion.