European Court of Human Rights

 

 

 

THIRD SECTION

 

 

 

 

 

 

 

 

CASE OF M.M. v. RUSSIA

 

(Application no. 7653/06)

 

 

 

 

 

 

 

 

 

 

JUDGMENT

 

 

STRASBOURG

 

12 December 2017

 

 

 

 

This judgment is final but it may be subject to editorial revision.

 




In the case of M.M. v. Russia,

The European Court of Human Rights (Third Section), sitting as a Committee composed of:

          Luis López Guerra, President,
          Dmitry Dedov,
          Jolien Schukking, judges,
and Fatoş Aracı, Deputy Section Registrar,

Having deliberated in private on 21 November 2017,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1.  The case originated in an application (no. 7653/06) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Russian national, M.M. (“the applicant”), on 26 January 2006. The President of the Section decided that the applicant’s name should not be disclosed (Rule 47 § 4 of the Rules of Court).

2.  The applicant was represented by five lawyers with the non-governmental organisation Memorial Human Rights Centre based in Moscow, including Ms A. Razhikova who submitted observations on his behalf, as well as by three lawyers with the non-governmental organisation EHRAC based in London. The Russian Government (“the Government”) were represented by Mr G. Matyushkin, Representative of the Russian Federation to the European Court of Human Rights, and then by his successor in that office, Mr M. Galperin.

3.  The applicant alleged, in particular, that he had been kept in appalling conditions, his medical data had been disclosed, and he had no effective remedies.

4.  On 13 January 2012 the application was communicated to the Government.

THE FACTS

I.  THE CIRCUMSTANCES OF THE CASE

5.  The applicant was born in 1984 and lives in Babushkin, Republic of Buryatiya, Russia.

A.  Criminal proceedings against the applicant

6.  On 6 January 2005 M.D. was arrested and taken to a police station. Allegedly, police officers threatened him with murder and ill-treatment if he refused to make a confession. In the presence of counsel, he made a written statement confessing to a murder. On 7 January 2005 an investigator compiled an arrest record.

7.  On 30 September 2005 another investigator issued a formal decision confirming that M.D.’s real name was M.M., the applicant in the present case before the Court.

8.  On 12 March 2007 the Verkh-Isetskiy District Court of Yekaterinburg (“the District Court”) convicted the applicant of murder and sentenced him to ten years’ imprisonment. On 6 June 2007 the Sverdlovsk Regional Court (“the Regional Court”) upheld the judgment.

B.  Handling of the information on the applicant’s HIV-positive status

9.  In the meantime, on 4 April 2005 the applicant had tested positive for HIV.

10.  According to the applicant, on 30 August 2006 (see below) he learnt that in October or November 2005 Z., a deputy district prosecutor, had given G., the sister of the murder victim, access to the file concerning the criminal charges against the applicant.

11.  At a hearing on 30 August 2006 the trial court granted G. victim status in the criminal case (see paragraph 36 below). At the same time, the trial court allowed a decision granting G. victim status to be added to the file (a decision apparently taken in late 2005 by an unspecified authority during the criminal investigation - however, see paragraphs 14-15 below). G. was cross-examined at that hearing. She stated that she had had access to the file and had then told D., the applicant’s relative, about his HIV status to prove that the applicant was not a good person. According to the applicant, G. also disclosed his HIV status to some other neighbours.

12.  Between September 2006 and 2010 the applicant unsuccessfully sought the institution of criminal proceedings against G. for the disclosure of private information, which was an offence under Article 137 § 1 of the Criminal Code (see paragraph 38 below). It appears that the applicant also sought the institution of criminal proceedings against Z. in relation to the disclosure of private information involving the use of an official position and abuse of power (Article 137 § 2 and Article 286 of the Criminal Code; see also paragraph 15 below).

13.  A pre-investigation inquiry was carried out for the offence allegedly committed by G.

14.  In December 2006 Z., the deputy district prosecutor, wrote to the applicant indicating that G. had not been granted victim status, and that the investigator in charge of the case had not provided her with access to the file during the preliminary investigation.

15.  In December 2006 the regional prosecutor’s office informed the applicant that G. had been granted victim status and had studied the case file in August 2006, she had not applied for victim status before that time, and there were no grounds for any pre-investigation inquiry in respect of Z. It is unclear whether the applicant took any further action as regards his criminal complaint against Z.

16.  As a result of the inquiry in respect of G., a refusal to institute criminal proceedings was issued. It was then overruled. Further refusals to prosecute were issued on 1 October and 26 November 2007 and on 9 February 2008.

17.  On 25 November 2008 the District Court refused to carry out judicial review of the refusal dated 9 February 2008. The Regional Court then considered that the applicant was entitled to judicial review and ordered the District Court to re-examine the issue. In the resumed proceedings, on 13 February 2009 the District Court noted that the applicant no longer wished to pursue the judicial complaint, and discontinued it.

18.  In the meantime, on 23 January 2009 an investigator had issued a new refusal to prosecute with reference to the expiry of the two-year time-limit for prosecution of an offence under Article 137 of the Criminal Code. The investigator heard D., who confirmed that G. had briefly mentioned the applicant’s HIV status. The investigator’s decision indicates that he considered the disclosure of the applicant’s medical data an established fact.

19.  On 28 September 2009 the District Court confirmed the refusal to prosecute dated 23 January 2009. The judge noted (apparently with reference to 2007) that for some time the institution of criminal proceedings had been refused because “at the time no written statement could be obtained from [the applicant] in relation to his complaint”. This had prompted the supervising prosecutor to set aside, among other things, the refusals to prosecute dated 1 October and 26 November 2007 and 9 February 2008. The prosecutor had acted promptly by taking decisions on 5 October and 29 December 2007 and on 30 December 2008. Following each decision, law-enforcement officers had taken measures to interview the applicant (apparently by asking staff at his remand centre to interview him), but “no statement had been received from him”.

20.  On 17 March 2010 the Regional Court upheld the judgment of 28 September 2009. The appeal court stated that, while the fact of the dissemination of the applicant’s medical data by G. had been established, she could not be prosecuted, owing to the expiry of the time-limit for prosecution. However, those grounds for discontinuing the case were, in a way, in the applicant’s interest, and it remained open to him to bring civil proceedings against her.

21.  In May 2010 the applicant brought civil court proceedings against G., seeking compensation for non-pecuniary damage on account of the disclosure of his HIV status to other people. On 13 September 2010 the District Court discontinued the case because the respondent was a foreign national not residing in Russia. Apparently, the applicant did not appeal.

22.  The applicant also lodged a claim under the 2010 Compensation Act. A judge rejected it, noting that the Act did not give standing to a criminal complainant with no “victim” status seeking compensation on account of the length of a pre-investigation inquiry. Apparently, the applicant did not appeal.

C.  Conditions of detention

23.  The applicant provided the following account of his conditions of detention.

24.  Between 17 January 2005 and July 2007 the applicant was kept in Yekaterinburg Remand Centre no. 66/1. After his arrival he was placed in cell no. 301, which measured 20 square metres and accommodated five people. This cell had no window, and the temperature in the cell was around 2˚C. There was no bed or bedding. The toilet did not work and was not separated from the main area.

25.  On 18 January 2005 the applicant was transferred to cell no. 625, which measured 20 square metres and had six beds, but which actually accommodated seventeen people. The toilet was not separated from the main area.

26.  From 19 January to 4 April 2005 the applicant was in cell no. 125, which measured 4 or 7 square metres and accommodated four detainees (or up to six people, according to the applicant’s amended description).

27.  From 4 April to 18 May 2005 the applicant was kept in cell no. 204, which measured 20 square metres and had six beds, but accommodated twenty-three to twenty-eight people.

28.  From 18 May to 2 June 2005 the applicant was in hospital. It appears that the material conditions of his stay there were acceptable. However, between 24 May and 1 June 2005 he was allegedly ill-treated by medical assistants (also people who had been convicted) who, at the instigation of police officers, tried to extract a confession from him.

29.  After being returned to the remand centre, the applicant was placed in cell no. 205, which measured 20 square metres and accommodated up to twenty-five people, despite having only sixteen beds.

30.  From 11 July 2005 the applicant was in cell no. 117, which measured 4 square metres and accommodated four detainees.

31.  Furthermore, the applicant provided a detailed account of the conditions of his detention between July 2005 and July 2007, conditions which were also cramped or unacceptable and where, at times, he was not able to have an individual bed.

32.  Between 2005 and 2009 the applicant lodged numerous complaints in relation to his conditions of detention. For instance, on 15 February 2006 the Prisons Department of the Sverdlovsk Region dismissed one of his complaints, whilst indicating that the actual number of detainees in the remand centre exceeded the design capacity of this detention facility. By a letter of 13 March 2006 the administration of the remand centre informed the applicant that the actual capacity of cells was such as to afford each detainee 2.5 square metres of space, which was a temporary measure related to the overpopulation problem.

33.  By a letter of 2 October 2008 the Sverdlovsk prosecutor’s office supervising prisons confirmed that the applicant had been afforded between 0.9 and 3.8 square metres of cell space.

34.  By a letter of 2 December 2008 the prosecutor’s office of the Sverdlovsk Region informed the applicant that, following an inspection, it could be not confirmed that the cell toilets were not separated from the main area.

II.  RELEVANT DOMESTIC LAW

35.  The Basic Principles of Public Health Law of the Russian Federation (in force at the relevant time) provided as follows:

Section 61. Confidential medical information

“Information concerning a medical consultation, an individual’s health, his or her diagnosis and other data obtained in the course of examination or treatment shall be considered confidential [medical information]. ...

Confidential medical information cannot be disclosed by [people] privy to it as a result of their studies or the performance of their professional or other duties, except as provided for in subsections (3) and (4) of this section.

A person or his legal representative may consent to the disclosure of confidential medical information to other persons, including officials, for the patient’s examination and treatment, scientific research, publications, training and other purposes.

Confidential medical information may be disclosed without the consent of the individual or his legal representative:

...

3) at the request of investigating bodies, a prosecutor, or a court in connection with an investigation or judicial proceedings ...

Persons who have lawfully received confidential medical information may be held liable by way of disciplinary, administrative or criminal proceedings for the disclosure of this information, having regard to the damage caused ...”

36.  Under Article 42 of the Code of Criminal Procedure (“the CCrP”), as in force at the time, an inquirer, an investigator, a prosecutor or a court could issue a decision to grant victim status to a person who had sustained physical, pecuniary or non-pecuniary damage on account of a criminal offence. A victim thus acquired rights in the ongoing proceedings and could, inter alia, have access to a written record of investigative measures carried out with his or her participation, and access to a decision to commission a forensic report or such a report. Following completion of the preliminary investigation, he or she could study all material in the case file and make copies of it.

37.  Article 161 of the CCrP prohibited the disclosure of “data relating to a preliminary investigation”; however, a prosecutor, an investigator or an inquirer could authorise some disclosure where it would not impinge on the investigation and would not breach the rights of those involved. The disclosure of information relating to their private lives was prohibited in the absence of consent.

38.  Article 137 of the Criminal Code punished (by a fine, correctional labour or a custodial sentence of up to four months) the unauthorised collection or dissemination of information about the private or family life of a person without his or her consent, where this was done for some mercenary or other personal interest and was damaging to the rights and lawful interests of citizens (Article 137 § 1). The same actions carried out by an official using his or her position were punishable at the time by a fine, a ban on occupying certain positions or a custodial sentence of up to six months (Article 137 § 2).

THE LAW

I.  ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION

39.  The applicant complained regarding the inadequate conditions of his detention between January 2005 and July 2007 in Yekaterinburg Remand Centre no. 66/1. He relied on Article 3 of the Convention, which reads as follows:

Article 3

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

40.  The Government informed the Court that they proposed to make a unilateral declaration with a view to resolving the issues raised by the applicant’s complaint under Article 3. The Government acknowledged the inadequate conditions of detention. They offered to pay the applicant 9,500 euros (EUR), and invited the Court to strike the application out of the list of cases in accordance with Article 37 § 1 (c) of the Convention. The amount would be converted into the currency of the respondent State at the rate applicable on the date of payment, and would be payable within three months from the date of notification of the Court’s judgment. In the event of a failure to pay the amount within the above-mentioned three-month period, the Government undertook to pay simple interest on it, from the expiry of that period until settlement, at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points. The payment would constitute the final resolution of the case in so far as it concerned the complaint regarding the poor conditions of detention.

41.  The applicant accepted the terms of the unilateral declaration as regards the complaint under Article 3 of the Convention.

42.  The Court observes that Article 37 § 1 (c) enables it to strike a case out of its list if:

“for any other reason established by the Court, it is no longer justified to continue the examination of the application”.

43.  The Court has established clear and extensive case-law concerning complaints relating to inadequate conditions of detention (see, for example, Ananyev and Others v. Russia, nos. 42525/07 and 60800/08, 10 January 2012, and Butko v. Russia, no. 32036/10, §§ 54-64, 12 November 2015).

44.  Noting the admission contained in the Government’s declaration as well as the amount of compensation proposed - which is consistent with the amounts awarded in similar cases - the Court considers that it is no longer justified to continue the examination of the application in so far as it concerns the applicant’s complaint regarding the poor conditions of his detention (Article 37 § 1 (c)).

45.  In the light of the above considerations, the Court is satisfied that respect for human rights as defined in the Convention and the Protocols thereto does not require it to continue the examination of this part of the application (Article 37 § 1 in fine).

46.  Lastly, the Court emphasises that, should the Government fail to comply with the terms of their unilateral declaration, this part of the application may be restored to the list in accordance with Article 37 § 2 of the Convention (Josipović v. Serbia (dec.), no. 18369/07, 4 March 2008).

47.  Accordingly, as far as the complaint under Article 3 regarding the conditions of the applicant’s detention is concerned, this part of the application should be struck out of the list.

II.  ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION IN CONJUCTION WITH ARTICLE 3

48.  The applicant also argued under Article 13 of the Convention that he did not have at his disposal an effective domestic remedy to complain regarding the poor conditions of detention.

49.  The Government did not comment, having only submitted the unilateral declaration which dealt exclusively with the applicant’s complaint under Article 3.

50.  In the case of Ananyev and Others (cited above, § 119), in connection with a complaint regarding inadequate conditions of detention, the Court found that the Russian legal system did not provide an effective remedy that could be used to prevent the violation alleged or its continuation and provide the applicants with adequate and sufficient redress. The Government have presented no arguments or evidence to enable the Court to reach a different conclusion in the case at hand. In the light of the Government’s acknowledgement in respect of the applicant’s complaint under Article 3 of the Convention pertaining to the conditions of his detention (see paragraph 40 above), thus confirming its “arguable” nature, the Court concludes that the complaint under Article 13 is admissible. It further finds that the applicant had no effective domestic remedy at his disposal in respect of his complaint concerning the conditions of detention.

51.  Accordingly, there has been a violation of Article 13 of the Convention in conjunction with Article 3.

III.  ALLEGED VIOLATIONS OF ARTICLES 8 AND 13 OF THE CONVENTION

52.  The applicant complained under Article 8 of the Convention that the information about his HIV status had been made available to a third party, G., and that this information had been further disseminated by her to others. He also alleged that the domestic inquiry had taken too long and that he had had no effective remedy at national level.

53.  Article 8 reads as follows:

“1.  Everyone has the right to respect for his private and family life ...

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.”

54.  Article 13 of the Convention reads as follows:

“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

A.  The parties’ submissions

1.  The applicant

55.  The applicant submitted that his complaint was twofold: firstly, the medical certificate had been in the criminal case file and this certificate had been disclosed to G.; and secondly, G. had then disclosed his HIV status to other people with total impunity. Both actions had taken place without his consent.

56.  The disclosure of the medical certificate to G. in November 2005 had been unlawful because at that time she had not yet been granted victim status and thus could not have access to the file; moreover, access prior to the completion of a preliminary investigation could only be lawfully granted in respect of documents relating to investigative measures carried out with the involvement of the person receiving access to the file, and in respect of some other documents (see paragraph 36 above). In any event, the medical data in question had been of no relevance to the investigation or the trial, thus the disclosure had not pursued any legitimate aim under Article 8 § 2 of the Convention. The data could not affect the outcome of the proceedings in any manner, as they had not been relevant to the murder charge against the applicant; his HIV status had been neither an aggravating nor mitigating factor. Had he been charged with rape, for instance, his HIV status might indeed have played a role in establishing the constituent elements of a crime (for example, rape entailing the negligent infection of the victim with HIV).

57.  The Russian legislation on criminal law and procedure did not regulate the extent to which material contained in an investigation file could be disclosed. Nothing in this legislation limited the disclosure of medical information to other participants in the proceedings.

58.  The domestic court had not afforded the applicant a proper measure of protection. His criminal complaint relating to Article 137 of the Criminal Code (see paragraph 38 above) had not been examined properly and the authorities had allowed the time-limit for prosecution to expire. A civil-law remedy against G. had little chances of success in the absence of an effective criminal investigation. In any event, the applicant had tried this, but his action had been rejected, since a Russian court could not examine a case against a respondent who was a foreigner not residing in Russia.

2.  The Government

59.  The Government submitted that Russian law protected the inviolability of one’s private life by way of criminal liability under Article 137 of the Criminal Code, inter alia, in situations where one person disclosed information relating to another person’s privacy. Referring to the expiry of the time-limit for prosecution (apparently with reference to the investigation relating to G.) and the absence of factual information, the Government admitted that they were unable to make any further submissions as regards the criminal procedure. Lastly, the Government mentioned that civil proceedings could be part of domestic remedies as regards G.’s actions.

B.  The Court’s assessment

1.  Article 8 of the Convention

(a)  Admissibility

60.  The Court considers that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. No other grounds for declaring it inadmissible have been established. Thus, it should be declared admissible.

(b)  Merits

(i)  General principles

61.  The notion of “private life” within the meaning of Article 8 of the Convention is a broad concept which includes, inter alia, the right to establish and develop relationships with other human beings (see Niemietz v. Germany, 16 December 1992, § 29, Series A no. 251-B). It encompasses elements such as personal information relating to a patient (see I. v. Finland, no. 20511/03, § 35, 17 July 2008).

62.  Although the object of Article 8 is essentially that of protecting the individual against arbitrary interference by public authorities, it does not merely compel the State to abstain from such interference. In addition to this primarily negative undertaking, there may be positive obligations inherent in the effective “respect” for private life (see, as a recent authority, Bărbulescu v. Romania [GC], no. 61496/08, § 108, 5 September 2017). These obligations may involve the adoption of measures designed to secure the right even in the sphere of the relations between individuals (see Evans v. the United Kingdom [GC], no. 6339/05, § 75, ECHR 2007-I).

63.  Whether the case is analysed in terms of a positive obligation on the State to take reasonable and appropriate measures to secure the applicant’s rights under paragraph 1 of Article 8, or in terms of an interference by a public authority to be justified in accordance with paragraph 2, the applicable principles are broadly similar. In both contexts, regard must be had to the fair balance that has to be struck, as the case may be, between the applicant’s Convention right or freedom on one hand, and competing interests that another individual may have under the Convention or otherwise or the interests of the community as a whole on the other (see Bărbulescu, cited above, § 112, and, mutatis mutandis, Von Hannover v. Germany, no. 59320/00, § 57, ECHR 2004-VI). Furthermore, in striking this balance, the aims mentioned in the second paragraph of Article 8 may be of certain relevance (see Rees v. the United Kingdom, 17 October 1986, § 37, Series A no. 106).

64.  As regards such positive obligations, the notion of “respect” is not confined to any exhaustive list of measures. In view of the diversity of the practices followed and the situations obtaining in the Contracting States, the notion’s requirements may vary considerably from case to case. Accordingly, the Contracting Parties enjoy a wide margin of appreciation when it comes to determining the steps to be taken to ensure compliance with the Convention, account being taken of the needs and resources of the community and of individuals (see Johnston and Others v. Ireland, 18 December 1986, § 55, Series A no. 112). Thus, the choice of means calculated to secure compliance with this positive obligation falls within the States’ margin of appreciation (see Bédat v. Switzerland [GC], no. 56925/08, §§ 75 and 77, ECHR 2016, and Kahn v. Germany, no. 16313/10, §§ 67-68, 17 March 2016).

65.  As to respect for the individual’s private life, the Court reiterates the fundamental importance of its protection in order to ensure the development of every human being’s personality. That protection extends beyond the private family circle to include a social dimension (see Von Hannover, cited above, § 69). More specifically, the Court has previously held that the protection of personal data, not least medical data, is of fundamental importance to a person’s enjoyment of his or her right to respect for private life as 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 above considerations are especially valid as regards the protection of the confidentiality of a person’s HIV status (see Armonienė v. Lithuania, no. 36919/02, §§ 20-21 and 40, 25 November 2008).

66.  It is in the light of the above considerations that the Court must now examine whether the State has fulfilled its positive obligation to secure the applicant’s right to respect for his private life.

(ii)  Application of the principles to the present case

(α)  Existence and scope of the interference in the present case

67.  The Court notes that the applicant did not complain before it that the investigating authorities had obtained the information about his HIV status (in this respect, see Avilkina and Others v. Russia, no. 1585/09, §§ 31-32, 6 June 2013, and Y.Y. v. Russia, no. 40378/06, §§ 40 and 51-60, 23 February 2016). The applicant’s grievances relating to Z., the deputy district prosecutor, were limited to stating he had acted unlawfully in providing G. with access to the criminal file.

68.  In view of the above, the scope of the complaint before the Court is confined to the allegations that (i) Z. disclosed the applicant’s HIV status to G. without the applicant’s consent, and (ii) G. then disclosed this information to other people with total impunity, again without the applicant’s consent.

69.  It is not in dispute between the parties, and the Court accepts, that the above factual elements fall within the scope of the applicant’s private life protected under Article 8 § 1 of the Convention. The applicant confines his grievances concerning Z.’s actions to the fact that access to the file was given to G. The applicant does not refer to any other parties to the proceedings. It is also noted that the applicant alleged that G. had told several people about his HIV status. The domestic inquiry and the material before the Court confirm that she communicated this information to at least one person.

70.  The Court notes that there is some doubt as to when G. first studied the case file containing the applicant’s medical certificate (see paragraphs 10-15 above). Whatever the actual date, the fact remains that the file did contain this certificate and G. saw it.

(β)  Handling of the criminal case file

71.  The Government have not demonstrated the existence of any pertinent legitimate aim pursued by including the medical certificate in the criminal case file or granting G. access to this certificate. Indeed, it was not considered at domestic level that the presence in the file of the medical data in question, despite the absence of the applicant’s consent, was of any relevance to the criminal investigation or the determination of the criminal charge against the applicant at trial, or to the rights or legitimate interests of other parties to the criminal proceedings.

72.  Nothing suggests that making the defendant’s (the applicant’s) medical information accessible sought to pursue any legitimate aim within the meaning of Article 8 § 2 of the Convention in the present case. In the Court’s view, the investigating or prosecuting authority’s omission in not protecting the medical information from the eyes of third parties was capable of amounting to a failure on the part of the respondent State to discharge a position obligation under Article 8 of the Convention.

73.  Consequently, given that the balance lay in favour of the individual’s right to respect for private life, the State had an obligation to ensure that the applicant was able to effectively enforce respect for that right (see Armonienė, cited above, § 43).

74.  Given the wide scope of the investigating or prosecuting authorities’ power under Russian law to request access to medical information in a criminal case (see paragraph 35 above), and the absence of any argument in this respect on the part of the Government, the Court is not inclined to accept that a criminal complaint against any action or omission attributable to Z. under Article 137 or 286 of the Criminal Code had any reasonable prospect of success in the circumstances of the case. It appears that nothing in Russian law required Z. or another official to demonstrate diligence in granting access to the criminal file containing the certificate concerning the defendant’s HIV status.

75.  Consequently, having regard to the scope of the Government’s observations (see paragraph 59 above) and on account of the adverse effect which the handling of the criminal case file had on the applicant’s private life in the present case, the Court concludes that the Government did not comply with their positive obligation.

(γ)  Dissemination of medical information to others by a private individual

76.  In the Court’s view, it would be excessive to consider that each unpleasant or otherwise adverse interaction between private individuals might give rise to a positive obligation for a Contracting State under Article 8 of the Convention (see, mutatis mutandis, Bédat, cited above, § 72, which states that, while the right to protection of one’s reputation is a right protected by Article 8 as part of the right to respect for private life, in order for this Article to come into play, an attack on a person’s reputation must attain a certain level of seriousness and be carried out in a manner causing prejudice to personal enjoyment of the right to respect for private life).

77.  The Court considers that the prima facie substantiated allegation regarding highly sensitive medical information being disseminated to several people did bring Article 8 of the Convention into play in the present case.

78.  The Court observes that Article 137 § 1 of the Criminal Code (see paragraph 38 above) provided a legal framework for prosecuting intrusion into one’s private life, including in the context of a private individual communicating information to others either presented as another person’s medical diagnosis or actually constituting a medical diagnosis, as in the present case.

79.  As to the criminal complaint against G., it is clear that the matter represented no factual or legal complexity. However, the pre-investigation inquiry spanned more than three years, particularly on account of the inquiring officers’ failure to comply properly and fully with their superiors’ instructions. As a result, the time-limit for prosecution expired. In the particular circumstances of the case, the length of the proceedings and the fact that consequently it was impossible to pursue those proceedings are fully attributable to the State (compare Stoev and Others v. Bulgaria, no. 41717/09, § 48, 11 March 2014, and G.U. v. Turkey, no. 16143/10, §§ 63 and 80, 18 October 2016). The Court has taken note of some vague allusions made by the domestic court in relation to insufficient cooperation between the applicant and the inquiring authorities (see paragraph 19 above). However, the fact remains that the authorities did have the applicant’s initial criminal complaint made in September 2006. It was sufficiently detailed and specific.

80.  As to civil-law remedies, the respondent Government have not substantiated that any civil action had a reasonable prospect of success so as to meet the requirements arising from the positive obligation under Article 8 of the Convention. In particular, it remains unclear whether there was any particular type of claim that could have been made under the Civil Code or any special legislation.

81.  The Court concludes that the respondent Government have not demonstrated that they properly discharged their positive obligation to ensure respect for the applicant’s private life at the material time.

(δ)  Conclusion

82.  There has been a violation of Article 8 of the Convention in the present case.

2.  Article 13 of the Convention

83.  Having regard to the nature and scope of the Court’s above findings, it is not necessary to carry out a separate examination in respect of the admissibility and merits of the issue under Article 13 of the Convention in conjunction with Article 8.

IV.  ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION

84.  The applicant complained under Article 6 of the Convention regarding the length of the proceedings concerning G. The relevant part of Article 6 reads as follows:

“In the determination of his civil rights and obligations ... everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal ...”

85.  The Government admitted that there had been a violation of this provision in the present case.

86.  The applicant submitted that the proceedings, which had arisen from his criminal complaint, had concerned the determination of his “civil right”, namely his right to privacy.

87.  Having regard to the nature and scope of the Court’s findings under Article 8 of the Convention, the Court finds it possible to dispense with examining the admissibility and merits of the complaints under Article 6 of the Convention.

V.  OTHER ALLEGED VIOLATIONS OF THE CONVENTION

88.  Lastly, the applicant complained regarding ill-treatment, unlawful detention and the use of tainted evidence in the criminal case. He referred to Articles 3, 5 and 6 of the Convention.

89.  However, in the light of all the material in its possession, and in so far as the matters complained of are within its competence, the Court finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. Accordingly, this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

VI.  APPLICATION OF ARTICLE 41 OF THE CONVENTION

90.  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

91.  The applicant claimed compensation in respect of non-pecuniary damage caused by the violations under Articles 6, 8 and 13 of the Convention (in conjunction with Articles 3 and 8), leaving the amount of any award to the Court’s discretion.

92.  The Government contested the claim.

93.  Regard being had to the documents in its possession and to its case-law (see, in particular, Ananyev and Others, § 173, and Butko, § 68, both cited above), and the Government’s undertaking set out in their unilateral declaration, the Court considers that the finding of a violation under Article 13 of the Convention in conjunction with Article 3 constitutes in itself sufficient just satisfaction.

94.  On the other hand, as regards the violation under Article 8 of the Convention, the Court awards the applicant EUR 2,850 in respect of non-pecuniary damage, plus any tax that may be chargeable on this amount.

B.  Costs and expenses

95.  The applicant also claimed 2,590 pounds sterling (GBP) for costs and expenses incurred before the domestic authorities and before the Court.

96.  The Government contested the claim.

97.  In accordance with the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court rejects the claim for costs and expenses in the domestic proceedings and considers it reasonable to award the sum of EUR 850 for the proceedings before the Court.

C.  Default interest

98.  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.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1.  Decides, having regard to the terms of the Government’s declaration and the arrangement for ensuring compliance with the undertakings referred to therein, to strike the application out of its list of cases in accordance with Article 37 § 1 (c) of the Convention in so far as it concerns the complaint under Article 3 of the Convention regarding the inadequate conditions of the applicant’s detention;

 

2.  Declares the complaint regarding the lack of an effective domestic remedy to complain of the inadequate conditions of detention, and the complaints concerning the disclosure of the applicant’s HIV status, admissible;

 

3.  Decides that there is no need to examine separately the admissibility and merits of the complaints under Article 6 of the Convention and under Article 13 of the Convention in conjunction with Article 8;

 

4.  Declares the remainder of the application inadmissible;

 

5.  Holds that there has been a breach of Article 13 of the Convention in conjunction with Article 3;

 

6.  Holds that there has been a breach of Article 8 of the Convention;

 

7.  Holds

(a)  that the respondent State is to pay the applicant, within three months, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:

(i)  EUR 2,850 (two thousand eight hundred and fifty euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii)  EUR 850 (eight hundred and fifty euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses;

(b)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

 

8.  Dismisses the remainder of the applicant’s claim for just satisfaction.

Done in English, and notified in writing on 12 December 2017, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

     Fatoş Aracı                                                                    Luis López Guerra
Deputy Registrar                                                                       President