JOINT DISSENTING OPINION OF JUDGES O’LEARY, CHANTURIA AND BÅRDSEN

1. A case like the present one could raise important issues relating to consent to HIV tests performed in the context of routine medical checks related to employment and limits to disclosure of the results of such tests to third parties, including the employer.

2. We regret that, for the reasons explained below, we are unable to join the majority and find a series of violations of Article 8 of the Convention on the basis of reasoning which, in places, is quite far-reaching.

3. We agree entirely with the majority (see paragraphs 34 -35 of the judgment) that an individual’s health constitutes a key element of private life. [2] We also agree that respecting the confidentiality of health data is a vital component in the legal systems of all the Contracting Parties to the Convention. [3] These considerations are particularly important as regards protection of the confidentiality of information about a person’s HIV status, not least given the stigma which may have attached or still attach in certain societies to that illness. [4]

4. A general reading of the case might also point to certain weaknesses regarding how regulations, regulatory authorities and individual employers in Ukraine deal with sensitive medical data or did so at the material time.

5. However, the Court is bound to examine the complaints as submitted by applicants, which complaints consist of two elements: factual allegations and legal arguments. The requirement of exhaustion of domestic remedies, which was respected in this case, ensures that the Court benefits from the factual and legal assessment performed by one or several domestic courts and prevents the Court acting as a first or fourth instance.

6. In the present case, between 2008 and 2012, the applicant submitted her case for examination by the military prosecutor’s office, the Primorskyi District Court of Odessa, the Odesa Regional Court of Appeal and the Higher Specialised Civil and Criminal Court. After due consideration, these domestic courts held that the applicant:

- had consented to the HIV test, having signed the written consent form;

- had been duly informed about the results of her HIV test based on the consent form in combination with her request to be discharged;

- had not provided sufficient evidence to prove that she had not consented to the diagnosis being disclosed to her parents or, in certain circumstances, to a third party such as her employer.

7. It is a fundamental feature of the machinery of protection established by the Convention that the national systems themselves should provide redress for breaches of its provisions, with the Court exercising a supervisory role subject to the principle of subsidiarity. [5] Where the highest domestic court has concluded that there was no evidence which could call into question the lower courts’ conclusions regarding the unsubstantiated nature of the applicant’s claims (see paragraph 18 of the judgment), the Court should only reach the opposite conclusion if it considers that the domestic court assessments are manifestly unreasonable or arbitrary. [6]

8. Neither is the Court a court of fourth instance. Its power to review compliance with domestic law is limited as it is in the first place for the national authorities, notably courts, to interpret and apply domestic law. This is particularly true when, as in this instance, the majority decides to frame the case with reference to the hierarchy of domestic norms, without, it would appear from the file, a complete picture of all the relevant norms having been available. [7]

9. It is not the Court’s function to deal with errors of fact or law allegedly committed by a national court or to substitute its own assessment for that of the national courts or other national authorities unless and in so far as they may have infringed rights and freedoms protected by the Convention. [8] In other words, the Court does not question the assessment of the domestic authorities unless there is “clear evidence of arbitrariness”. [9]

10. A number of features of the present case are striking. First, finding a violation in this case required the Court to establish a set of facts different from that found by the domestic courts based on the applicant’s version of events. However, the applicant’s factual allegations – which were at variance with the findings of the domestic courts – also varied between her application and her response to the Government’s observations (see paragraph 10 of the judgment). The applicant even disputed the submissions of her mother, who claimed to have been informed about her HIV results by the applicant’s partner prior to having this confirmed by one of the hospital doctors. According to the applicant, however, her mother had no prior knowledge of her condition before it was disclosed by hospital staff (ibid., paragraph 17). It appears that the applicant’s partner refused to testify. Central to the applicant’s legal arguments regarding absence of consent and information and unlawful disclosure were the establishment of these relevant facts. Second, it is striking that the majority is willing to accept certain factual elements as established by the domestic courts (not least the crucial question of consent in relation to which the applicant’s version of events is rejected in paragraph 31 of the judgment) but not others (see paragraph 40 on the question whether the applicant had been duly informed). Given the extent to which the facts were in dispute and the level of inconsistency in the applicant’s version, it is difficult to see why the Court considered itself to be in a better position than the domestic courts and why it was considered that the manifestly unreasonable and arbitrary threshold was reached in this case.

11. We agree with the majority that the disclosure of sensitive medical data such as that forwarded confidentially to the applicant’s military unit by the medical military commission could raise issues under Article 8 of the Convention in relation to an employee’s right to privacy. However, the question of what the applicant consented to when she underwent medical tests mandated by her employment contract remains of central importance regarding this aspect of her Article 8 complaint. Yet her allegations regarding consent have not been accepted. Furthermore, it appears to us that the majority have embarked on their own interpretation of domestic law and the interaction between the regulation on military medical assessments and the HIV act (see paragraphs 55 – 58 of the judgment), unguided by relevant domestic case-law on one or other act and their relationship and in the absence of answers to specific questions addressed to the Government which would have enabled the Court to engage fully and carefully with any lawfulness problems which might have arisen in the applicant’s case.

12. Due to the factual allegations and legal complaints presented by the applicant and the inconsistencies therein and with reference to the material available to the Court, we are not in a position to conclude that it was manifestly unreasonable or arbitrary for three levels of domestic courts to conclude that the applicant’s complaints were unsubstantiated.

[1] About 6,700 euros (EUR) at the time.

[2] L.L. v. France , no. 7508/02, ECHR 2006 XI; Radu v. the Republic of Moldova , no. 50073/07, 15 April 2014; L.H. v. Latvia , no. 52019/07, 29 April 2014, § 56; Konovalova v. Russia , no. 37873/04, 9 October 2014, §§ 27, 41; Y.Y. v. Russia , no. 40378/06, 23 February 2016, § 38; Surikov v. Ukraine , no. 42788/06, 26 January 2017; Frâncu v. Romania , no. 69356/13, 13 October 2020, § 52.

[3] L.L. v. France , cited above, §§ 44-45.

[4] Z v. Finland , 25 February 1997, Reports of Judgments and Decisions 1997 , § 96; Kiyutin v. Russia , no. 2700/10, ECHR 2011, § 64; Armonienė v. Lithuania , no. 36919/02, 25 November 2008, § 40; Biriuk v. Lithuania , no. 23373/03, 25 November 2008, § 39; I. v. Finland , no. 20511/03, 17 July 2008, § 38; C.C. v. Spain , no. 1425/06, 6 October 2009, § 33; P.T. v. the Republic of Moldova , no. 1122/12, 26 May 2020, §§ 5-6, 26.

[5] Z and Others v. the United Kingdom [GC], no. 29392/95, § 103, ECHR 2001‑V

[6] See, for example, A. and Others v. the United Kingdom [GC], no. 3455/05, ECHR 2009, § 174.

[7] Radomilja and Others v. Croatia [GC], nos. 37685/10 and 22768/12, 20 March 2018, § 150; Anheuser-Busch Inc. v. Portugal [GC], no. 73049/01, § 83, ECHR 2007-I.

[8] Article 19 ECHR. See, for example, García Ruiz v. Spain [GC], no. 30544/96, §§ 28-29, ECHR 1999-I; Perez v. France [GC], no. 47287/99, § 82, ECHR 2004-I; De Tommaso v. Italy [GC], no. 43395/09, 23 February 2017, § 170.

[9] See, for example, Sisojeva and Others v. Latvia (striking out) [GC], no. 60654/00, ECHR, § 89.