Credit: ECtHR
The European Court of Human Rights this week issued a judgment concerning an employee’s termination due to his HIV-positive status, and the lack of judicial protection offered by the Greek courts. See ECtHR, I.B. v. Greece, no. 552/10, Judgment of 3 October 2013 (in French). The European Court held that I.B.’s termination constituted violations of articles 8 (right to respect for private and family life) and 14 (prohibition of discrimination) of the European Convention on Human Rights. [ECtHR Press Release]
Applicant’s Position before the ECtHR
The applicant, I.B., is a Greek national who had been working at a jewelry manufacturer since 2001. I.B. v. Greece, no. 552/10, Judgment of 3 October 2013, para. 7. In January of 2005, he told three of his colleagues he feared he had contracted the human immunodeficiency virus (HIV), a diagnosis that was subsequently confirmed in February 2005. Id. para. 8. Those three colleagues then wrote a letter to their employer, arguing that I.B. should be dismissed because he had AIDs. Id. All three employees also took a HIV screening test with negative results. Id. Rumors about I.B.’s health began to circulate within the approximately 70-member company, with the staff asking for I.B. to be dismissed. Id. para. 9. In response, the employer invited an occupational-health physician to speak with all the employees in order to explain how HIV was transmitted and the precautions that could be taken. Id.
Following the physician’s visit, 33 employees wrote to the director of the company to ask for I.B.’s dismissal in order to “preserve their health and their right to work.” Id. at para. 10. Two days later, I.B’s employer dismissed him with the appropriate compensation provided under Greek law. Id. I.B. was then reemployed by another private company. Id. at para. 11.
I.B. lodged a complaint with the Athens Court of First Instance. Id. para. 12. The court found that the dismissal was illegal, motivated only by I.B.’s illness, and that the employer’s attitude constituted an abuse of the law. Id. at para. 15. The court also concluded there was no need to order reinstatement considering that I.B. had found employment following his dismissal. Id. Both parties appealed the judgment to the Court of Appeal of Athens. Id. at para. 17.
In its January 2008 decision, the Court of Appeal found that in dismissing I.B., the employer had given in to pressure from his staff in order to preserve a good working environment. Id. at para. 18. The Court of Appeal also noted that the views of the staff were scientifically unfounded considering how HIV is transmitted and, thus, there was no danger to their health. Id. As I.B. posed no adverse effect to the company or its proper functioning due to his illness, his illness could not be an objective justification for termination. Id. at para. 19. The Court of Appeal also explained that I.B.’s personality, with regard to his professional and social status, was affected due to his illegal dismissal, and awarded non-pecuniary damages. Id. at para. 21.
In March 2009, the Court of Cassation then quashed the judgment of the Court of Appeal, explaining that because the dismissal was not motivated by malice on the part of his employer, I.B.’s termination was justified when done with the aim of restoring harmonious collaboration between employer and employees and maintaining smooth business operations. Id. at para. 24.
ECtHR Chamber Judgment
Before the European Court of Human Rights, the applicant complained of a violation of his right to privacy because the Court of Cassation based its decision on the fact he was HIV-positive. Id. para. 48. He also alleged that his dismissal was discriminatory and that the Court of Cassation’s determination that his termination was justified by the need to preserve the company work environment, could not qualify as a permissible basis for differential treatment under Article 14 of the European Convention. Id.
The ECtHR explained that issues relating to employment do impact an individual’s private life, and thus HIV could not be considered a solely medical issue. Id. at para. 70. I.B.’s dismissal led to further stigmatization of the disease and, despite the employer’s efforts to educate the company’s employees about the transmission of HIV, the events in question negatively impacted I.B.’s ability to lead a normal life. Id. at para. 73.
The ECtHR’s jurisprudence notes that differential treatment occurs when a person is treated differently, without an objective and reasonable justification, from persons in a similar or comparable situation. Id. at para. 75. Here, the applicant was treated less favorably than his similarly situated colleagues based on his HIV-positive status. Id. at para. 77. The ECtHR had previously noted, in its judgment in Kiyutin v. Russia, no. 2700/10, Judgment of 10 March 2011, that ignorance regarding the spread of the virus has fueled stigmatization and marginalization of HIV-positive persons. Id. at para. 81. As such, those living with HIV are a particularly vulnerable group and States have a narrow margin of appreciation to adopt measures subjecting individuals to differential treatment based on their HIV-positive status. Id.
The ECtHR then found that the Court of Cassation had failed to balance the competing interests of the applicant and the employer as thoroughly as the Court of Appeal of Athens did. Id. para. 88. The Court of Cassation had based its decision on an incorrect understanding of the contagious nature of I.B.’s illness, thereby conforming with the employees’ mistaken notions, biases, and prejudices surrounding HIV. Id. at para. 88. Furthermore, the Court of Cassation failed to explain why the employer’s interest outweighed that of the applicant, and did not balance the parties’ rights in a manner consistent with the European Convention. Id. at para. 90. The ECtHR therefore concluded that I.B. was discriminated against on basis of his health status, in violation of Article 8 in conjunction with Article 14 of the Convention. Id. at para. 91.
Pursuant to articles 43 and 44 of the Convention, the Court’s decision is not yet final because any party can request that the case be referred to the Grand Chamber within a three-month period following the date of the judgment. See the European Court’s factsheet on Health for additional cases concerning the human rights of people with HIV or AIDS.
HIV/AIDS and Human Rights
More than 60 million people have been infected with acquired immunodeficiency syndrome (AIDS). [OHCHR] State responses to prevention and treatment directly impact the vulnerability to infection, access to treatment, social and economic status, and related human rights of the individuals and societies affected by this epidemic. Individuals living with HIV and AIDS have been, and continue to be, marginalized and discriminated against around the world. Incomplete and inaccurate information regarding HIV often leads to discriminatory treatment and obstructed access to treatment, housing, and employment. As such, human rights bodies have paid particular attention to raising awareness and developing standards concerning government practices and policies that can better protect the human rights of those with HIV/AIDS. See, for example, statements by the Inter-American Commission on Human Rights, Council of Europe Commissioner for Human Rights, and the African Commission on Human and Peoples’ Rights Committee on the Protection of the Rights of People Living with HIV.
Although there is no treaty that directly addresses this disease, several international human rights conventions and declarations have been interpreted to require effective governmental responses to HIV. See OHCHR and UNAIDS, Handbook on HIV and Human Rights for National Human Rights Institutions 6-10 (2007). One such treaty includes the right to the highest attainable standard of health, embodied in Article 12 of the International Covenant on Economic, Social, and Cultural Rights (ICESCR). The UN body that monitors implementation of the ICESCR – the Committee on Economic, Social and Cultural Rights – has explained that the right to health includes positive obligations by the State to ensure availability of proper HIV-related information, education, and support to help lessen the stigmatization surrounding HIV. See CESCR, General Comment No. 14, The Right to the Highest Attainable Standard of Health, E/C.12.2000/4, 11 August 2000.
For more information about HIV and Human Rights, see the UN Office of the High Commissioner for Human Rights’ webpage on HIV/AIDS and Human Rights and UNAIDS’ Targets and Commitments for achieving improved prevention, treatment, care and support.