FIFTH SECTION CASE OF S.M. v. THE REPUBLIC OF MOLDOVA (Application no. 56353/15) JUDGMENT STRASBOURG 6 February 2025 This judgment is final but it may be subject to editorial revision. In the case of S.M. v. the Republic of Moldova, The European Court of Human Rights (Fifth Section), sitting as a Committee composed of: Gilberto Felici , President , Diana Sârcu, Mykola Gnatovskyy , judges , and Martina Keller, Deputy Section Registrar, Having regard to: the application (no. 56353/15) against the Republic of Moldova lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 1 October 2015 by a Moldovan national, S. M. (“the applicant”), who was born in 1976, lives in Chișinău and was represented by Mr V. Rusu, a lawyer practising in Chișinău; the decision to give notice of the complaint under Article 8 of the Convention to the Moldovan Government (“the Government”), represented by their Agent, Mr O. Rotari, and to declare inadmissible the remainder of the application; the parties’ observations; the information given to the Moldovan Government that the case was assigned to a Committee; Having deliberated in private on 16 January 2025, Delivers the following judgment, which was adopted on that date: SUBJECT MATTER OF THE CASE 1. The case concerns the disclosure of confidential medical information about the applicant by his doctor, as well as the forwarding of such data by a Ministry to further State institutions, without the applicant’s consent. The applicant invokes Article 8 of the Convention. 2 . B. is a urology doctor employed by the Buiucani Medical Territorial Association (“the MTA”), a State medical institution, and was married to the applicant’s cousin. He previously testified as a witness in the framework of a criminal investigation concerning a property crime of which the applicant was accused. On 2 February 2012 the investigator set up a cross-examination interview ( confruntare ) simultaneously with B. and the applicant. At the beginning of the interview the investigator asked B. whether he knew the applicant; if so when and in what circumstances they had become acquainted. B. replied that he had known the applicant for about 16 years since he had seen him in the house of his former father-in-law. The applicant’s father had asked B. to treat the applicant and he had treated him for a sexually transmitted disease. He also said that the applicant’s mother called him a thief and a drug abuser and that everyone was careful to prevent the applicant from stealing something from the house. 3 . The applicant complained to the Ministry of Health (“the Ministry”), describing the events, notably B.’s statement about the applicant’s sexually transmitted disease. The Ministry forwarded his complaint to the MTA, which forwarded it, in turn, to the health department of the Chișinău municipality (“the HDCM”) and to the National Centre for the Protection of Personal Data (“the Data Protection Centre”). The Data Protection Centre replied on 5 May 2012 that B. had not had the right to disclose medical information about the applicant to the investigator, who had not specifically asked for it and in any event had not provided a justification for the need to obtain details about the applicant’s diagnosis, the investigated offence being of an economic nature. As for the Ministry’s forwarding of the applicant’s complaint which included his personal medical information to other healthcare institutions, the Data Protection Centre found that, in the absence of the applicant’s express consent or of special circumstances requiring the release in accordance with a legal obligation, such information could not be lawfully disseminated to further institutions. 4 . The applicant lodged a court action against the Ministry of Health, the MTA and the HDCM, requesting the acknowledgment of the breach of his right not to have sensitive medical information about him disclosed first by B., and then by the Ministry when forwarding his complaint to the MTA and the HDCM. B. was heard as a third party and declared that he had been warned by the investigator of criminal responsibility for making false statements and felt obligated to answer fully all the questions asked. The courts dismissed this action (final decision of 1 April 2015 of the Supreme Court of Justice) since B. had acted as a private individual, not representing the medical institution for which he worked. Moreover, responsibility for breaching individual rights lay with the health service provider, which had not been any of the institutions in the applicant’s case, but had been doctor B. Finally, the medical information about the applicant had to be submitted to the investigating authority in accordance with Section 12 (4)(c) of Law no. 263 (see paragraph 9 below). Since the Ministry could not properly examine the applicant’s complaint without the involvement of the MTA and since he had used the extra-judicial manner of dispute settlement, forwarding his complaint to the MTA had not amounted to an interference with the applicant’s rights. Moreover, when the applicant requested the extra-judicial protection of his rights, he gave his consent for processing his personal data by the relevant institutions. 5. In September 2015 the applicant lodged a criminal complaint against B. The investigation against B. was eventually discontinued in March 2017. 6. In separate civil proceedings, the applicant claimed compensation from B. for the moral damage suffered as a result of the disclosure of his personal medical information. On 14 September 2017 the Chișinău District Court rejected the court action, finding that a prosecutor had already discontinued the criminal investigation against B. and that the proceedings ending with the judgment of 1 April 2015 had acquired the power of res judicata . 7 . On 20 February 2018 the Chișinău Court of Appeal quashed the part of the lower court’s judgment concerning res judicata , but maintained the part rejecting the court action against B. It found that, having been accused by the applicant in a criminal investigation, B. could not be limited in what he could say about the applicant as a means of defence. Moreover, the materials in the investigation file were confidential, which ensured the observance of the applicant’s right to protection of his personal data. No person involved in the criminal investigation disclosed the information about the applicant’s diagnosis to anyone outside that investigation. In a final decision of 12 September 2018, the Supreme Court of Justice dismissed the applicant’s appeal in cassation. 8. The applicant complained about the disclosure, by his doctor, of sensitive medical data about him to the investigator and the forwarding of his complaint containing personal medical information by the Ministry to two State institutions. Relevant domestic law 9 . Under Section 12 of the Law on the rights and responsibilities of the patient (no. 263-XVI, in force since 30 June 2006), all data concerning the identity and state of a patient, results of investigations, diagnosis, treatment and other personal information shall be protected, even after the patient’s death. Such information can only be disclosed with the patient’s explicit consent. Under Section 12 (4)(c), such information can be released to an investigating authority or a court upon their reasoned request in relation to an investigation or court proceedings. Such information can also be released without the patient’s consent to other authorities (law enforcement, medical and epidemiologic ones) in specific circumstances, such as preventing the spread of infectious diseases, investigating crimes, informing a minor’s parents, as well as involving other doctors in the patient’s treatment. In the latter case information is shared only to the extent necessary for the other doctors to take adequate decisions. 10 . Under Section 16 of the same law, the extra-judicial protection of the patient’s rights can be carried out, as the case may require, by the Ministry of Health, the territorial health departments, medical, pharmaceutical and sanitary institutions, health insurance organisations, doctors’ associations and other entities established by law. Complaints against these institutions shall be examined on the basis of the legislation in force, including the law on petitioning, and the person shall be informed of the results. Any decision taken can be appealed to the independent professional medical commission created at each institution. THE COURT’S ASSESSMENT admissibility 11. The Court notes that the Government have asked not to include into the file the applicant’s observations since they had not been made in an official language of the Council of Europe (Rule 34 § 3 (a) of the Rules of Court). The Court notes that the applicant did not ask for permission to use a non-official language. It will thus examine the case without taking into account the applicant’s latest submissions. It does note, however, that by making his submissions in a non-official language, the applicant confirmed his wish to continue with the examination of the case. 12. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention or inadmissible on any other grounds. It must therefore be declared admissible. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION 13. The general principles concerning protection from disclosure of personal data have been summarised in Z v. Finland (25 February 1997, §§ 94-98, Reports of Judgments and Decisions 1997-I). 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 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 (see Z. , cited above, § 95, and Avilkina and Others v. Russia , no. 1585/09, § 45, 6 June 2013). Nevertheless, the interests of a patient and the community as a whole in protecting the confidentiality of medical data may be outweighed by the interest of investigating and prosecuting crime, where such interests are shown to be of even greater importance (see Z ., cited above, § 97). 14. The present case concerns the disclosure of information concerning the applicant’s treatment for a sexually transmitted disease. The Court finds that a breach of the confidentiality of health data falls within the protection of Article 8 of the Convention, all the more so as the information divulged relates to the fact that the applicant suffered from a sexually transmitted disease to which social stigma is attached. 15. The Court must determine whether there was an interference with the applicant’s rights protected under Article 8 of the Convention and whether any such interference had been provided by law, pursued one of the legitimate aims of Article 8 § 2 and was “necessary in a democratic society”. 16. The applicant made two separate complaints, namely about disclosure of his personal medical information by B. and about the forwarding of such information by the Ministry to other institutions. The Court will examine in turn each of these complaints. Disclosure of the applicant’s personal medical information by B. 17. The Court recalls that releasing information to a third party about a person’s health status without his consent constitutes an interference with his rights protected under Article 8 of the Convention (see, for instance, Radu v. the Republic of Moldova , no. 50073/07, § 27, 15 April 2014). 18. As for B.’s disclosure of personal medical information to the investigator, it is first noted that B. worked as a doctor for a State medical institution. 19. The Government argued that, as established by the domestic courts, B. had acted as a private individual and not as a representative of MTA and thus of the State. This was therefore not a case of interference by the authorities with the applicant’s rights. The Court observes that B. indeed was not officially asked for information in his capacity of a doctor when he testified as a witness in the criminal proceedings against the applicant. Moreover, it is apparent that the investigator did not ask for any medical information, but only inquired about any previous relationship between the witness and the accused, which was relevant to determining the witness’ credibility. Accordingly, B. was not required to release medical information about the applicant and the case cannot be examined as an interference by the public authorities in his private life. 20. Nevertheless, the Court reiterates that while the essential object of Article 8 of the Convention is to protect the individual against arbitrary interference by public authorities, there may in addition to this primary negative undertaking be positive obligations inherent in an effective respect for private or family life and the home. These obligations may involve the adoption of measures in the sphere of the relations between individuals (see Király and Dömötör v. Hungary , no. 10851/13, § 60, 17 January 2017 , with further references). 21. It must therefore be determined whether the authorities have complied with their positive obligation of protecting the applicant’s rights against disclosure of his sensitive medical information by a doctor. In this respect the Court recalls that the principles applicable in the case of an interference with the applicants’ Article 8 rights and those relevant to cases examined under the authorities’ positive obligations are broadly similar ( Paketova and Others v. Bulgaria , nos. 17808/19 and 36972/19, § 163, 4 October 2022). 22. The Court finds that B.’s release of sensitive medical information about the applicant, which he had obtained as part of carrying out his duties of a doctor, affected the applicant’s rights under Article 8 of the Convention and required a response on the part of the authorities. 23. The Government argued, as had the domestic courts, that the applicant’s rights had not been affected since the medical information about him was released in the framework of a criminal investigation and all the materials in the file were covered by the secrecy of the investigation. The Court notes that Law no. 263 (see paragraph 9 above) allows the release of personal medical information to an investigator on the condition of the presence of a reasoned request. It is therefore apparent that the Moldovan legislator did not consider the secrecy of the investigation protecting the materials of a criminal case as being in itself sufficient to guard against the unconsented release of such information, and required a reasoned request to justify releasing it. Moreover, the unconsented release of such information even to one person (the investigator) in itself affected the applicant’s rights, regardless of whether such a person could lawfully further circulate it or actually did so. Finally, the Court has already had occasion to find that there had been an interference with Article 8 rights when personal medical information had been disclosed to the prosecutor’s office ( Avilkina and Others , cited above, § 32). 24. The domestic courts and the Government referred to Section 12(4)(c) of Law no. 263 (see paragraph 9 above) as the legal basis for the doctor’s actions. That Section provided for the possibility of releasing personal medical information to an investigator in connection with a criminal investigation. The Court considers that in the present case it need not determine whether B.’s actions had a legal basis, as it will focus on whether the authorities’ response to the applicant’s complaint about B.’s actions complied with their positive obligations under Article 8 of the Convention. 25. The Court notes that the investigation against the applicant concerned an alleged property offence. It has never been argued that the applicant’s past diagnosis had any relevance to the investigation. It is also apparent that the investigator never specifically asked for any medical information about the applicant and never invoked any reasons for obtaining such information, as required under Section 12(4)(c) of Law no. 263 cited above. Rather, B. volunteered this information, together with other information exposing the applicant in a negative light (see paragraph 2 above). 26. The domestic courts also mentioned that since B. had been criminally accused by the applicant, he could not be limited in what he could say to defend himself (see paragraph 7 above). However, B. made his statement in the framework of an investigation against the applicant and was not at the time accused himself of any offence. It was precisely after revealing the applicant’s diagnosis that B. found himself accused by the applicant. 27. The Court finds that the domestic courts have rejected the applicant’s complaint without identifying any convincing reason for which B. could lawfully release sensitive medical information about the applicant, so as to outweigh his right to protection of his private life. 28. There has accordingly been a violation of Article 8 of the Convention in respect of the authorities’ response to B.’s actions. The forwarding of the applicant’s complaint to other institutions 29. The applicant also complained that by forwarding to another State institution his complaint containing sensitive medical information, the Ministry disclosed the information about his past illness to other officials at the MTA, which further disseminated it to the HDCM, each time without his consent. 30. The Government argued, as had before the domestic courts, that by using the extra-judicial avenue of dispute settlement the applicant essentially consented to the disclosure of his personal data. Moreover, the Ministry could not have examined his complaint without the input of the competent territorial medical agencies, including the one for which B. worked. 31 . The Court observes that the courts relied on the Law on the rights and responsibilities of the patient (see paragraph 10 above). However, it is noted that no part of that law provides for presuming a person’s consent to disclosing personal medical information when using the extra-judicial dispute settlement procedure. On the contrary, Section 12 of that law provides that personal medical information can only be disclosed with the person’s consent, which moreover must be explicit (see paragraph 9 above). In the present case, the applicant did not explicitly consent to the forwarding of his personal medical information to other institutions. 32. Therefore, the unconsented forwarding by the Ministry of the applicant’s complaint containing personal medical information about him to another public authority, which in turn forwarded it to yet another authority, constituted an interference with his Article 8 rights. 33. As found above (see paragraph 31 above), the applicant did not give his consent to disclosing sensitive medical information about him by forwarding his complaint to other State institutions without editing out the part describing the applicant’s past diagnosis. Nor is there any basis in the law to allow for presuming such consent. 34. While the law provided for a number of exceptions allowing the disclosure of personal medical information without the consent of the person concerned (see paragraph 9 above), none of them was invoked by the domestic courts. 35. Therefore, there are legitimate doubts that the interference with the applicant’s rights was in accordance with the law. However, the Court need not reach a definitive conclusion in this respect because the interference was, in any event, disproportionate. 36. The domestic courts found that the Ministry could not efficiently deal with the applicant’s complaint against B. without involving subordinate medical institutions. However, they did not explain why, in doing so, the Ministry had to divulge the secrecy of the applicant’s past medical diagnosis. The issue before the Ministry was whether, in the absence of a request for medical information and of specific reasons by the investigator as required by law, B. had the right to divulge any medical information about the applicant, regardless of the specific illness involved. Therefore, it could ask the subordinate institutions’ input regarding B.’s actions without specifying the applicant’s diagnosis, which was irrelevant in this context. The domestic courts did not convincingly establish that the Ministry could reasonably deal with the applicant’s complaint only by disclosing the details of his medical diagnosis, thus outweighing his right to protection of his private life. The position of the Data Protection Centre only confirms this finding (see paragraph 3 above). 37. There has accordingly been a violation of Article 8 of the Convention also in respect of the unconsented forwarding of the applicant’s complaint containing sensitive medical information to other State authorities. APPLICATION OF ARTICLE 41 OF THE CONVENTION 38. The applicant did not submit a claim for just satisfaction. Accordingly, the Court considers that there is no call to award him any sum on that account. FOR THESE REASONS, THE COURT, UNANIMOUSLY, Declares the application admissible; Holds that there has been a violation of Article 8 of the Convention. Done in English, and notified in writing on 6 February 2025, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Martina Keller Gilberto Felici Deputy Registrar President