Radu v. Republic of Moldova

In the case of Radu v. the Republic of Moldova (Application no. 50073/07.) the Court found a violation of Article 8 of the ECHR in relation with the dislcosure of confidential medical data of a pregnant woman to her employer.

The applicant, Ms Liliana Radu, was a lecturer at the Police Academy in Chişinău. In 2003 she underwent artificial insemination at a fertility clinic and became pregnant with twins. On 3 August 2003 a doctor from the No. 7 Centre for Family Doctors (hereafter referred to as CFD) found an increased risk of miscarriage in relation with her pregnancy and therefore ordered her immediate hospitalization. Liliana Radu was confided into CFD between 4 and 20 August 2003 of which her employer was notified via a sick note referring to her pregnancy and an increased risk of miscarriage. The President of the Police Academy however requested information from the CFD in November 2003 regarding the person who had ordered her hospitalisation, the initial and final diagnoses, and the treatment she had received. As a response, the CFD disclosed the requested data and information that: this was the applicant’s first pregnancy, she was carrying twins; the pregnancy had resulted from artificial insemination, the applicant had hepatitis B, the applicant had obstetrical complications, she had a negative blood type. The clinic further attached a copy of the applicant’s medical file to the letter. Ms Radu suffered a miscarriage shortly after the disclosure due the stress to which she had been subjected, according to the medical report.

She brought proceedings against the hospital and the Police Academy claiming compensation for a breach of her right to private life, which were ultimately dismissed in May 2007 by the Supreme Court as it considered that the hospital had been entitled to disclose the requested information to Ms Radu’s employer.

Ms Radu complained about the hospital’s disclosure of sensitive information about her health to her employer. She further alleged that the court proceedings had been unfair because the courts had adopted arbitrary decisions and failed to give reasons for them. She relied on Articles 6 and 8 of the ECHR in her application.

Violation of Article 8

The ECtHR noted at the outset that it had been undisputed between the parties that the disclosure of the applicant's health related data constituted an interference with Ms Radu's right to private life. Such an interference must comply with the requirements set out in Art. 8(2) of the Convention, namely: it shall be “in accordance with the law,” “necessary in a democratic society,”  and shall pursue one or more legitimate aims referred to therein.

As to the first element, the Court noted that the expression “in accordance with the law” relates to the quality of that law. Therefore domestic law shall

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.

In this respect, the Government referred to section 8 of Law 982 on access to information as being, in their view, the legal basis for the interference. This provision states that providers of information may disclose personal data only if the data subject agrees to its disclosure, or when the information has previously been in the public domain. If the data subject does not consent to the disclosure, access to such information can be authorised by a court. The ECtHR however found - firstly - that "it was only the Government and not the Supreme Court of Justice that referred to such legal basis for the interference", the high court merely stated - without further explanation - that the CFD was entitled to disclose the information to the applicant’s employer. And secondly, even assuming that the Supreme Court had intended to rely on that provision, section 8 of that Law deemed it unlawful to the CFD to disclose personal data to the applicant’s employer without her consent.

The Court noted 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.

Therefore the interference with Ms Raud' right to respect for her private life was not “in accordance with the law” within the meaning of Article 8. The ECtHR declared that the Republic of Moldova had violated Article 8 of the ECHR.

In view of the conclusion the Cour held that no separate issue arises under Article 6 of the Convention.

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Since the Court  reasonably found that the interference with Ms Radu right to respect for private life was not in accordance with the relevant domestic and international law, I would like to add only that the ECtHR should have stressed more explicitly its reasoning followed in - for instance - the case of Avilkina and Others v. Russia. In that judgment the Court found the following:

[...] the protection of personal data, including medical information, is of fundamental importance to a person’s enjoyment of the right to respect for his or her private and family life guaranteed by Article 8 of the Convention. Respecting the confidentiality of health data is a vital principle in the legal systems of all the Contracting Parties to the Convention. The disclosure of such data may seriously affect a person’s private and family life, as well as their social and employment situation, by exposing them to opprobrium and the risk of ostracism […]. Respecting the confidentiality of health data is crucial not only for the protection of a patient’s privacy but also for the maintenance of that person’s confidence in the medical profession and in the health services in general. Without such protection, those in need of medical assistance may be deterred from seeking appropriate treatment, thereby endangering their own health […].