5.  The applicant was born in 1962 and lives in Simferopol.
6.  In 1990 the applicant graduated from the Ukrainian Printing and Publishing Institute with a diploma in technological engineering.
7.  On 23 August 1990 he was employed as a worker by the Tavrida State Publishing House (hereafter “Tavrida”).
8.  In June 1997 the applicant asked N., the director of Tavrida, to place him on the reserve list for promotion to an engineering position corresponding to his qualifications.
9.  Having received no follow-up, in 2000 the applicant applied for the second time.
10.  On 6 March 2000 this application was refused.
11.  On an unspecified date in 2000 the applicant appealed to the Central District Court of Simferopol (hereinafter “the Central District Court”) seeking, in particular, to oblige his employer to consider him for an engineering position.
12.  During the proceedings, the defendant company submitted that its refusal was connected to the state of the applicant’s mental health. In particular, as was apparent from the information retained on the applicant’s personnel file, in 1981 he had been declared unfit for military service in peacetime in accordance with Article 5b of the then applicable 1973 Diseases and Handicaps Schedule issued by the Ministry of Defence of the Union of Soviet Socialist Republics (“the USSR”). In the summer of 1997 the human resources department had obtained from the military enlistment office a certificate stating that the applicant had indeed been dispensed under Article 5b, which read as follows: “psychosis and psychotic disorders connected to organic cerebral lesions with residual moderately manifested deviations in the mental sphere”. The defendant company further noted that as the applicant had not provided any subsequent information concerning his state of health, his appointment to an engineering position – which implied managerial responsibilities and supervision of other employees – was considered unwarranted. A copy of the certificate issued by the military enlistment office was provided to the court for examination during the public hearings.
13.  B., the applicant’s supervisor questioned by the court during the trial, submitted that the applicant had been a diligent employee. However, in his view he lacked the necessary personal skills to occupy a position with managerial responsibilities. In particular, occasionally the applicant had been involved in conflicts with his colleagues. All of them, when questioned by B., had suggested that they did not want to have the applicant as their supervisor. In view of the above and with regard being had to the reasons for the applicant’s dispensation from military service, in B.’s view the management had been correct in refusing the applicant’s application for promotion.
14.  On 17 August 2000 the court rejected the applicant’s claim, having found that promotion of employees was within the employer’s discretion and there was no legal basis for obliging the defendant company to arrange the applicant’s promotion by way of court proceedings in a situation such as that of the applicant.
15.  On 24 September 2000 this judgment was upheld by the Supreme Court of the Autonomous Republic of Crimea (“the ARC”) and became final.
16.  In 2002 Tavrida referred the applicant for a medical examination “with a view to determining [his] fitness for employment” as an engineer.
17.  On 5 September 2002 the applicant obtained a certificate signed by six medical specialists, including a psychiatrist and a neurologist from the local polyclinic attesting to his fitness for employment as an engineer.
18.  In August 2003 the applicant was appointed as a foreman and in April 2006 as an engineer-technologist.
19.  In October 2000 the applicant instituted civil proceedings against Tavrida seeking damages and apologies from its management for his purported defamation resulting from the dissemination of information concerning the medical grounds for his dispensation from military service. He alleged, in particular, that the defendant company had had no right to enquire of the enlistment office in 1997 about the grounds for his dispensation, to use this information in deciding on his promotion and to disseminate it to his direct supervisor and other colleagues, as well as to communicate it to the court in the framework of the civil dispute.
20.  In January 2001 the applicant modified his claims, seeking to oblige the defendant company, in particular, to promote him to an engineering position and to pay him non-pecuniary damages for the purportedly unlawful processing of his health data, libel, and discrimination on the basis of health.
21.  On 23 January 2001 the Central District Court rejected the applicant’s claim as lacking legal basis. In particular, it noted that labour law did not prohibit employers from enquiring of military enlistment offices about their employees’ military service records.
22.  On 28 March 2001 the Supreme Court of the ARC quashed this judgment and remitted the case for a fresh consideration. It noted that pursuant to section 23 of the Information Act of 1992, health data constituted personal data and could only be collected with the applicant’s consent, unless otherwise envisaged by law. The trial court should have established whether it had been lawful to collect and use the applicant’s psychiatric health data in the manner and in the context in which it had been used; what the purpose of its processing had been and whether it had been justified, regard being had, in particular, to the fact that the data pertained to 1981. The court also noted that section 46 of the Information Act expressly restricted dissemination of confidential medical information. The trial court should have explored whether the enlistment office’s certificate contained confidential medical information and whether the fact that it had become known to other employees had caused damage to the applicant.
23.  In May 2002 the applicant further amended his claim, alleging that the defendant company had processed his health data in breach of: Article 32 of the Constitution of Ukraine; sections 23 and 46 of the Information Act; section 40 of the Legislative Guidelines concerning Protection of Health in Ukraine (“the Health Protection Guidelines”); and sections 3 and 6 of the Psychiatric Assistance Act.
24.  On 17 May 2002 the Central District Court rejected the applicant’s claim, having requalified it in law as falling within the ambit of Article 7 of the Civil Code of Ukraine of 1963 as in force at the material time and found that the defendant company could not be held liable under that provision for having disseminated defamatory statements. It also noted that the information obtained by the defendant company from the enlistment office, could not qualify as “confidential medical information”, as it contained a reference to the standardised grounds for dispensation from military service rather than a personalised medical diagnosis.
25.  On 19 February 2003 the Court of Appeal of the ARC (formerly the Supreme Court of the ARC; hereinafter “the Court of Appeal”) quashed this judgment and remitted the case for a fresh consideration. It noted, in particular, that the Central District Court had arbitrarily requalified the applicant’s claims as falling within the ambit of Article 7 of the Civil Code rather than addressing his arguments concerning the breach of the legal provisions to which he had referred. It further instructed the District Court to take into account the ruling of the Constitutional Court of Ukraine of 30 October 1997 in the case of Ustymenko in interpreting applicable legislation.
26.  On 23 July 2003 the Central District Court took a fresh decision rejecting the applicant’s claims, referring, again, to Article 7 of the Civil Code and having found that there was nothing unlawful either in Tavrida’s or its director’s personal conduct with respect to the processing of the disputed information. Without referring to any legal provisions, the court noted that the director had been authorised to know the reasons for the applicant’s dispensation from military service, as this information had been a part of the personnel record compiled and kept by employers in the ordinary course of business. Discussion of the relevant information with some other company employees had been carried out in good faith: it had only happened in the context of taking a decision on whether the applicant could be appointed to a position with increased responsibilities, including staff management. In doing so, the director had acted within the limits of managerial discretion.
27.  The applicant appealed against this decision. He submitted, in particular, that the information concerning the standardised grounds for his dismissal in 1981 had not been specific enough to serve as a basis for determination of whether or not he could be employed as an engineer in 1997; and that in any case it had been outdated. Should his employer have had any doubts concerning his psychiatric health, it could have asked the applicant to provide a current medical certificate of fitness for work. He further noted that the court had not addressed his arguments under Article 32 of the Constitution of Ukraine, the Information Act and other legal provisions to which he had referred. In addition, the applicant noted that the Central District Court had not cited any references to any legal provisions entitling employers to enquire without their employees’ consent about the reasons for their dispensation from military service, and to have them recorded in their personnel files. In the applicant’s view, this information was not pertinent to his ability to perform engineering duties. The court had also not assessed whether it had been justifiable to communicate the information concerning the applicant’s dispensation to third parties.
28.  On 1 December 2003 the Court of Appeal rejected the applicant’s appeal, upholding the final conclusions reached by the Central District Court, but having amended the reasoning. In particular, it found that Tavrida had been an improper defendant in the applicant’s case, as the applicant’s complaint in substance had concerned the conduct of N. (its director); K. (the human resources officer); and B. (the applicant’s supervisor) acting in their capacity as individuals. The Court of Appeal did not cite any legal provisions in substantiation of its conclusions.
29.  The applicant appealed on points of law arguing that N., K. and B. had been acting in their official capacities when processing his health data, thus the defendant company had been vicariously liable for their actions. He further noted that in any event the court had had the authority to summon the proper defendants in the case, rather than dismissing it, and that both the trial and the appeal courts had never considered his main arguments on the merits.
30.  On 29 May 2006 the Supreme Court of Ukraine refused the applicant’s application for leave to appeal on points of law.
31.  In July 2006 the applicant instituted civil proceedings challenging, in particular, the lawfulness of the actions of N., K. and B. with respect to the processing of his health data.
32.  On 30 November 2006 the Kyivskiy District Court of Simferopol rejected the applicant’s claim as unsubstantiated. The court acknowledged that the disputed data qualified as “confidential information” falling within the ambit of section 23 of the Information Act. At the same time, it noted that the scope of individual involvement of each of the defendants in collecting and processing this information was not entirely clear. In any event, this processing had been lawful, as according to applicable law, the human resources departments were obliged to keep the military duty records of their staff on file and to synchronise them with the military enlistment offices. The communication of the relevant information by the human resources officer to the company director in connection with deciding on the applicant’s promotion had also been justified, because managers had been entitled to be apprised of their employees’ health, such information being necessary for ensuring a safe working environment. The defendants had obtained access to the disputed information in accordance with the law and processed it for the sole purpose of deciding on the applicant’s promotion; this processing had been carried out in good faith and so had not been unlawful.
33.  The applicant appealed against this decision, alleging, inter alia, that using (in 1997 and 2000) the information concerning the reasons for his dispensation from military service in 1981 with a view to deciding on his promotion had been excessive; that the relevant information had been outdated, incomplete and impertinent; and that should his employer have wanted to check his health status, it should have referred him to a specialised medical commission.
34.  On 24 January 2007 the Court of Appeal rejected the applicant’s appeal.
35.  On 23 May 2007 the Supreme Court rejected a further application by the applicant for leave to appeal on points of law.