SEPARATE OPINION OF JUDGE MARUSTE

In the case at hand the applicant ’ s main complaint was made under Article 2 of the Convention, that the domestic courts had refused to award her compensation for the damage she had suffered and thus had violated her right to life. As an alternative the applicant relied on Article 8. As to the merits she maintained that the Government had failed to issue clear guidelines to the medical profession on how to react in cases where a patient refused to disclose his infection to his close relatives. Such a situation and the doctor ’ s failure to disclose her companion ’ s HIV-positive status had prevented her from seeking early treatment and had thus aggravated the violation of her Convention rights.

As to the complaint under Article 2 , I am in agreement with the majority in their conclusion and do not have any particular problems with the reasoning of the judgment, although one might ask the question whether or not this case falls under Article 2 at all, because the applicant is still alive and modern medicine gives her a good chance of living a normal life with some limitations or even the possibility of recovery (for modern treatment in HIV cases see N. v United Kingdom , judg ment of 27 May 2008).

But the applicant also complained as an alternative under Article 8, which was ruled out by the Chamber for the same reasons as the Article 2 complaint (see § 36) not making any separate examinations under that head. I consider this approach incorrect because the areas of protection of the two articles under discussion are different. The present case in substance falls to be examined rather under Article 8 in my view, more specifically under the positive obligation to protect private life.

The chamber, like the domestic courts, concentrated on the legal issues related to compensation and overlooked the problem detected by the Frankfurt Court of Appeal, namely that no established domestic case-law existed as to whether a family physician was obliged to disclose a patient ’ s HIV status to the partner even against the patient ’ s explicit will. Had there been clear rules and practice for balancing conflicting interests for the doctors the family physician could have avoided an error in interpretation of his duty. It could also have led him to give adequate information and instructions to the partner at the due time, avoiding unnecessary doubts and maybe even accusations. This would certainly have given the applicant clear grounds to determine her private, including her intimate, life, and take necessary precautions. The applicant was left in uncertainty for more than two years (from 21 January 1993 to March 1995 - see paragraph 9). It seems to me that this situation of dangerous uncertainty in which the applicant was left amounted to an unjustified interference in her private life.