Respect for private life in the employment context
II. RELEVANT DOMESTIC LAW AND NON-CONVENTION MATERIAL 15. The Council of Europe ’ s Convention for the Protection of Human Rights and Dignity of the Human Being with regard to the Application of Biology and Medicine, also known as the Convention on Human Rights and Biomedicine, which entered into force in respect of the Republic of Moldova on 1 March 2003, provides, in so far as relevant: “ Article 10 – Private life and right to information 1. Everyone has the right to respect for private life in relation to information about his or her health.” 16. The relevant provision of Law No. 185 on reproductive health and family planning provides as follows: “ Section 12. The right to confidentiality in realizing one ’ s rights to reproduction (1) Every person is entitled to respect for the confidentiality of information concerning his or her application to fertility institutions, the treatment received therein and the state of his or her reproductive health. ” 17. The relevant provisions of Law No. 263 on the rights and obligations of patients stipulate as follows: “ Section 12. The patient ’ s right to respect for the privacy of confidential medical information (1) All data concerning the identity and the condition of the patient, results of investigations, diagnoses, prognoses or treatment and data of a personal nature shall be confidential and shall be protected even after the patient ’ s death. (2) The confidentiality of information concerning the soliciting of medical care, examinations and treatment, as well as any other information which is medically confidential, shall be ensured by the treating doctor and the professionals involved in the providing of the medical care or biomedical research ... as well as by any other persons having learned such information by virtue of their professional duties. (3) Information which is considered to be confidential can be disclosed only with the patient ’ s or his legal representative ’ s explicit consent and under conditions approved by the patient ... (4) Disclosure of confidential information without the patient ’ s ... consent shall be possible in the following situations: a) in order to involve in the process of treatment other professionals in the field, including in the case of the urgent examination or treatment of a person incapable of expressing his or her consent because of his or her state of health, but only to the extent necessary for the taking an informed decision; b) in order to inform the State epidemiology authorities in the case of a real risk of the spreading of contagious diseases, poisoning or mass contamination; c) at the request (with reasons) of criminal investigation bodies or courts of law in connection with the carrying out of a criminal investigation or criminal proceedings, in accordance with the law; c1) at the request of the Ombudsman or of members of the consultative body of the Centre for Human Rights, in order to ensure protection against torture or other cruel or inhuman treatment; d) for the purpose of informing the parents or the legal representative of persons under eighteen years of age when providing such persons with medical care; e) when there is reason to believe that the harm to a person ’ s health has resulted from criminal or illegal activities, and information must be provided to the competent law bodies. (5) Any kind of involvement in the private or family life of a patient without his or her consent shall be forbidden. (6) Persons having obtained confidential information in the exercise of their functions, together with paramedical staff and pharmacists, are responsible under the law for any disclosure of medically confidential information ... (7) Biological products, including organs and tissue, from which identifiable data can be extracted shall also be protected. ” 18. The relevant provisions of Law No. 264 on the medical profession stipulate as follows: “ Section 13. Professional confidentiality (1) Every doctor shall be under an obligation to preserve professional confidentiality. (2) Information concerning the soliciting of medical care or the state of health, diagnosis or other information obtained by a doctor as a result of examining or treating a patient is of a private nature, constitutes medically confidential information and cannot be disclosed. (3) With the patient ’ s consent ... it shall be possible to disclose confidential information to other persons in the interests of examining and treating the patient, of carrying on scientific research, for academic purposes and for other purposes. (4) Disclosure of information which is professionally confidential to other persons without the patient ’ s ... consent shall be possible in the following circumstances: a) for the purpose of examining or treating a patient who on account of his/her health condition, is unable to express his or her wish; b) in case of a real risk of the spreading of contagious diseases, poisoning or mass contamination; c) at the request of criminal investigation bodies or courts of law in connection with the carrying out of a criminal investigation or criminal proceedings, in accordance with the law; c1) at the request of the Ombudsman or of members of the consultative body of the Centre for Human Rights, in order to ensure protection against torture or other cruel or inhuman treatment; d) in the case of providing medical care to a person who is not responsible under the law and is incapable of informing his or her parents or legal representatives; e) when there is reason to believe that the harm to a person ’ s health has resulted from criminal or illegal activities and information must be provided to the competent law bodies. (5) Persons having obtained information which amounts to professionally confidential information are responsible under the law for disclosure of such information. (6) Professional confidentiality cannot be breached even after the termination of the treatment or the death of the patient. ” 19. The relevant provision of Law No. 411 on health care stipulates as follows: “ Section 14. Professional duties and responsibiltiy for their breach 1. Doctors, other medical personnel and pharmacists are under a duty to maintain the confidentiality of information concerning diseases, or the private and family life of patients, which they come to learn in the exercise of their duties, except for cases where there is a risk of the propagation of contagious diseases and at the reasoned request of the criminal investigation authorities or courts of law.” 20. The relevant provisions of Law No. 982 on access to information, as in force at the material time, provided as follows: “ Section 8. Access to information of a personal nature (1) Information of a personal nature is considered to be information with restricted access and consists of data concerning an identified or identifiable person the disclosure of which would constitute a breach of his or her [right to respect for] private and family life. ... (7) Providers of information may disclose information of a personal nature solicited in accordance with the present law only in the following circumstances: a) the person whom the information concerns agrees to its disclosure; b) the whole of the solicited information has previously been in the public domain ... (8) If the person whom the information of a personal nature concerns does not consent to its disclosure, access to such information can be authorised by a court after it has found that the disclosure at issue is in the public interest, that is, that disclosure would pursue the aim of protecting public health, security or the environment. ” 21. The relevant provision of the Criminal Code reads as follows: “ Article 177. Breach of a person ’ s right to respect for private life (1) Unlawful gathering or disclosure of confidential information protected by law concerning a person ’ s private life, without that person ’ s consent, shall be punished by a fine of up to MDL 6,000 or by community service work of 180 to 240 hours. ” 22. The relevant provision of the Employment Code reads as follows: “ Article 91. General rules concerning the treatment by the employers of employees ’ personal data and guarantees concerning its protection With a view to ensuring the protection of human rights and freedoms, when processing the personal data of their employees, employers and their representatives are obliged to observe the following conditions: ... d) the employer has no right to obtain or store data concerning the employer ’ s political and religious views or his private life. In the cases provided for by law, the employer can request and store data concerning an employee ’ s private life only after obtaining that employee ’ s consent; ... ” THE LAW I. ALLEGED VIOLATION OF ARTICLES 6 AND 8 OF THE CONVENTION 23. The applicant complained that the disclosure of information of a medical nature by the CFD to her employer constituted a violation of her right to respect for private life as provided in Article 8 of the Convention. She also alleged that the proceedings in which her action against the CFD had been examined had been unfair because the courts had adopted arbitrary decisions and failed to give reasons for them. Articles 6 and 8 of the Convention, on which the applicant relied, read as follows: Article 6 “In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...” Article 8 “1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” A. Admissibility 24. The Court notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 1. The parties ’ submissions 25. The applicant asserted that there had been an interference with her rights guaranteed by Article 8 and that the interference had no legal basis in domestic law. Moreover, the interference had not been “ necessary in a democratic society ” because the applicant ’ s employer had not been conducting even an internal investigation, let alone a criminal one. The information disclosed by the CFD to the applicant ’ s employer was of a very personal nature and the employer already had sufficient knowledge concerning the applicant ’ s state of health from the sick leave certificates she had submitted. 26. The Government agreed that there had been an interference with the applicant ’ s right to respect for her private life. However, they argued that the interference was provided for by law, namely by Article 8 of Law No. 982 on access to information (see paragraph 20 above), had pursued a legitimate aim, and had been necessary in a democratic society. The Government stressed that, in their view, the present case very much resembled the case of M.S. v. Sweden ( 27 August 1997, Reports of Judgments and Decisions 1997 ‑ IV ) and asked the Court to adopt a similar approach to it. 2. The Court ’ s assessment 27. It is undisputed between the parties, and the Court agrees, that the disclosure by the CFD to the applicant ’ s employer of such sensitive details about the applicant ’ s pregnancy, her state of health and the treatment received constituted an interference with her right to private life. An interference will contravene Article 8 unless it is “in accordance with the law”, pursues one or more of the legitimate aims referred to in paragraph 2 of that Article, and furthermore is “necessary in a democratic society” in order to achieve the aim (see the following judgments: Campbell v. the United Kingdom, 25 March 1992, § 34, Series A no. 233; Calogero Diana v. Italy, 15 November 1996, § 28, Reports 1996-V; and Petra v. Romania, 23 September 1998, § 36, Reports 1998-VII). 28. The expression “in accordance with the law” not only necessitates compliance with domestic law, but also relates to the quality of that law (see Halford v. the United Kingdom, 25 June 1997, § 49, Reports 1997-III). The Court reiterates that domestic law must indicate with reasonable clarity the scope and manner of exercise of the relevant discretion conferred on the public authorities so as to ensure to individuals the minimum degree of protection to which citizens are entitled under the rule of law in a democratic society (see Domenichini v. Italy, 15 November 1996, § 33, Reports 1996-V; Avilkina and Others v. Russia, no. 1585/09, § 35, 6 June 2013 ). 29. In their submissions, the Government referred to section 8 of Law 982 on access to information (see paragraph 20 above) as being, in their view, the legal basis for the interference. The Court notes, firstly, that it was only the Government and not the Supreme Court of Justice that referred to such legal basis for the interference. In fact, the Supreme Court merely stated that the CFD was entitled to disclose the information to the applicant ’ s employer, without citing any legal basis for such disclosure. 30. Secondly, even assuming that the Supreme Court had intended to rely on that provision, the Court notes that under section 8 of that Law a doctor would not be entitled to disclose information of a personal nature even to the applicant ’ s employer without her consent. 31. In fact, the Court notes that all the relevant domestic and international law cited above expressly prohibits disclosure of such information to the point that it even constitutes a criminal offence. There are exceptions to the rule of nondisclosure; however, none of them seems to be applicable to the applicant ’ s situation. Indeed, the Government did not show that any such exception was applicable. It follows that the interference complained of was not “in accordance with the law” within the meaning of Article 8. Accordingly, there is no need to examine whether the interference pursued a legitimate aim or was “necessary in a democratic society”. 32. The Court therefore finds that there has been a violation of Article 8 of the Convention in respect of the applicant ’ s right to respect for her private life. In view of this conclusion it also holds that no separate issue arises under Article 6 of the Convention. II. APPLICATION OF ARTICLE 41 OF THE CONVENTION 33. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 34. The applicant claimed 10,000 euros (EUR) in respect of non-pecuniary damage. 35. The Government disputed the amount claimed by the applicant and reiterated their position that there had been no violation in the present case. Alternatively, they considered that a finding of a violation would in itself constitute sufficient just satisfaction. 36. Having regard to the violation found above, the Court considers that an award of just satisfaction for non-pecuniary damage is justified in this case. Making its assessment on an equitable basis, the Court awards the applicant EUR 4,500. B. Costs and expenses 37. The applicant also claimed EUR 1,440 for the costs and expenses incurred before the Court. The applicant submitted relevant documents in support of her claims. 38. The Government objected and argued that the amount was excessive. 39. The Court awards the entire amount claimed for costs and expenses. C. Default interest 40. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.
The Court held that there had been violation of Article 8 (right to respect for private life) of the Convention. It found in particular that the interference complained of by the applicant was not “in accordance with the law” within the meaning of Article 8 of the Convention.