COMPENDIUM OF CASE LAW RELATED TO HIV/AIDS AND TUBERCULOSIS IN UKRAINE Compendium of Case Law Related to HIV/AIDS and Tuberculosis in Ukraine: Practitional Guide for Judges / United Nations Development Programme in Ukraine. – І.Ya. Senyuta; English text editing: O.Yu. Harasymiv. – K., 2021. – 124 pages. The publication is made within the framework of the UNDP Project “Governance of HIV/AIDS”. Brief information about the author: Iryna Yaroslavivna SENYUTA, Doctor of Law, Professor, Head of the Department of Medical Law, Faculty of Post- graduate Education, Danylo Halytskyi Lviv National Medical University, Attorney-at-law, Chairperson of the Committee of Medical and Pharmaceutical Law and Bioethics of the Ukrainian National Bar Association of, Head of the Medical Law Centre of the Higher School of Advocacy of the Ukrainian National Bar Association, Board member of the European Association of Health Law, President of the NGO “Foundation of Medical Law and Bioethics of Ukraine”. The United Nations Development Programme (UNDP) is a global development network of the United Nations. While helping in development of countries, UNDP partners with all strata of society that can withstand crisis, and drive and sustain the kind of economic growth that improves the quality of life for everyone. Operating in 170 countries, we offer global perspective and local insight to help empower lives and build resilient nations. In Ukraine, we are focused on three main development areas: democratic governance and local development; poverty eradication, achievement of prosperity and Ukrainian Millennium Development Goals; and energy efficiency and environment. The UNDP has been operating in Ukraine since 1993. Web: www.undp.org.ua www.facebook.com/UNDPUkraine E-mail: [email protected] This publication was prepared by a Ukrainian expert for the United Nations Development Program in Ukraine. Opinions, conclusions or recommendations are those of the author and do not necessarily reflect the views of the UNDP. © United Nations Development Programme in Ukraine, 2021 © І.Ya. Senyuta, 2021 CONTENTS ACKNOWLEDGEMENTS .......................................................................................4 INTRODUCTION ..............................................................................................5 ABBREVIATIONS ..............................................................................................6 GLOSSARY OF KEY TERMS ....................................................................................7 INTERNATIONAL STANDARDS .....................................................................20 SELECTED COUNTRIES’ LEGISLATION AND CASE LAW ON HIV/AIDS AND TUBERCULOSIS .............36 EUROPEAN COURT OF HUMAN RIGHTS CASE LAW ..................................................44 HIV/AIDS AND HUMAN RIGHTS IN THE EUROPEAN COURT OF HUMAN RIGHTS CASE LAW ....................45 TUBERCULOSIS AND HUMAN RIGHTS IN THE EUROPEAN COURT OF HUMAN RIGHTS CASE LAW .............64 NATIONAL LEGISLATION AND CASE LAW ON HIV/AIDS AND HUMAN RIGHTS ........................72 І. CASE LAW ON HIV TRANSMISSION . 72 ІІ. CASE LAW ON COMPENSATION FOR DAMAGES ............................................................83 ІІІ. CASE LAW ON CONFIDENTIAL INFORMATION DISCLOSURE ...............................................90 NATIONAL LEGISLATION AND CASE LAW ON TUBERCULOSIS AND HUMAN RIGHTS ..................96 І. CASE LAW ON TUBERCULOSIS AND MALICIOUS FAILURE TO TAKE CARE OF A CHILD ........................96 ІІ. CASE LAW ON INVOLUNTARY HOSPITALIZATION OF PATIENTS WITH INFECTIOUS FORMS OF TUBERCULOSIS ...........................................................................................99 ІІІ. CASE LAW ON OCCUPATIONAL DISEASES RELATED TO TUBERCULOSIS ..................................106 ІV. CASE LAW ON VARIOUS TYPES OF LEGAL RELATIONS IN THE FIELD OF TUBERCULOSIS ..................110 CONCLUSIONS ............................................................................................115 SOURCES ..................................................................................................118 ACKNOWLEDGEMENTS The Compendium of case law related to HIV/AIDS and tuberculosis in Ukraine was developed by UNDP consultant Iryna Senyuta. The author expresses her sincere gratitude to the external reviewers, members of the HIV, Health and Development (HHD) team at the Istanbul Regional Center (IRH), including Dr. Rosemary Kumwenda, John Macauley and Timur Abdullaev, and Olga Shapovalova, Head of the Training Department of the National School of Judges of Ukraine, the judge of the Supreme Court of Ukraine in resignation for advice and recommendations in preparing the pub- lication. Also, the author would like to express particular gratitude to the following Ukrainian (Oksana Harasymiv, Iryna Ka- nia, Khrystyna Tereshko) and foreign colleagues (Javier Garcia Amez, Tomasz Budnikowski, Stepan Holub), for their valuable inputs to the publication. The production of the publication was made possible through the generous support of the UNDP in Ukraine. 4 INTRODUCTION The Compendium of case law related to HIV/AIDS and tuberculosis in Ukraine is designed to be a professional tool for minimizing human rights violations by the state against HIV-positive and people living with tuberculosis. It is intended to serve as a procedural guide for national judicial and other law enforcement agencies in the respective area, and strengthen their capacity to ensure that the rights and freedoms of those entering into legal relations, where the key aspect is the issue of HIV/AIDS and tuberculosis, are upheld. The Compendium combines doctrine and practice, analysis of international standards, foreign legislation, national regulations, and case law (from national courts, courts in other countries, and ECtHR case law) and provides rec- ommendations for more effective implementation of best practices in Ukrainian law enforcement, which will serve to protect human rights in the field of health care and the establishment of the rule of law. The publication aims to intensify advocacy in order to improve the national legislation in this area, as well as to help lawyers, human rights defenders, service and patient organizations, health professionals whose field of interest is HIV/AIDS, tuberculosis and human rights. The Publication is divided into chapters that are focused on international standards including regional ones, case law and legislation from a number of foreign countries (Austria, Spain, the Netherlands, Poland, Germany, Czech Republic, Switzerland), ECtHR case law, as well as relevant national law and case law in the researched field. For the convenience of readers, each document and example of case law has a QR-code that optimizes the search for the necessary information. It should be noted that in the section containing the ECtHR case law, the ratio decidendi has been separated in the precedent structure to ensure the correct application thereof. In addition, the publication includes an analysis of the domestic case law which was conducted within the frame- work of judgements from the Unified State Register of Court Judgements. It has been organized as follows: 1) judgements have been clustered by type of legal relations, and similar texts were not duplicated although their titles were indicated; 2) the analysis of each group of judgements or individual judgements offers practical com- ments and advice that can help optimize law enforcement. The Compendium contains a glossary for a better un- derstanding of the terminology, and a list of abbreviations for ease of use. Also, it provides catalogue of essential sources to aid further research. The analysis is followed by general conclusions on the protection of human rights, in particular in the context of the security of sensitive medical data, the impact on the legality of court proceedings, and improvement of Ukrainian legislation. 5 Compendium of Case Law Related to HIV/AIDS and Tuberculosis in Ukraine ABBREVIATIONS AIDS acquired immunodeficiency syndrome ART antiretroviral therapy CC of Ukraine Civil Code of Ukraine CPC of Ukraine Civil Procedure Code of Ukraine CrC of Ukraine Criminal Code of Ukraine CrPC of Ukraine Criminal Procedure Code of Ukraine ECHR European Convention for the Protection of Human Rights and Fundamental Freedoms ECtHR European Court of Human Rights EU European Union Fundamentals Law of Ukraine “On Fundamentals of the Legislation of Ukraine on Healthcare” HIV human immunodeficiency virus MOH of Ukraine Ministry of Health of Ukraine MTB Mycobacterium tuberculosis PLHIV people living with HIV TB tuberculosis UN United Nations UNAIDS Joint United Nations Programme on HIV/AIDS WHO World Health Organization 6 Compendium of Case Law Related to HIV/AIDS and Tuberculosis in Ukraine GLOSSARY OF KEY TERMS Term Definition Reference Acquired stage of HIV-related disease (HIV infection) development, Law of Ukraine immunodeficiency characterized by clinical manifestations caused by deep “On Counteracting the syndrome (AIDS) damaging of the human immune system under the influ- Spread of HIV-Related ence of HIV Diseases and Legal and Social Protection of People Living with HIV”. Hereinafter, “HIV Law” labelling AIDS as deadly or incurable may create fear, and UNAIDS Terminology increase stigma and discrimination. Referring to it as a Guidelines, 2015 manageable, chronic illness also may lead people to be- lieve that, with treatment, AIDS is not as serious as it was Hereinafter, thought. AIDS remains a serious health