05 Nov 2021
Statement of the State Inspector’s Service
In view of the measures taken to protect the rights of the third President of Georgia Mikheil Saakashvili and the high public interest regarding his health condition, also to prevent possible violations, the State Inspector’s Service clarifies:
On the one hand, penitentiary establishment is obliged to respect the desire of aprisoner to refuse food. On the other hand, it has a positive obligation to protect the life and health of the person deprived of liberty through effective and prompt actions. Otherwise, improper measures implemented by the respective authorities/officials during a hunger strike may trigger the risks of human rights violations.
According to the case law of the European Court of Human Rights, a person in the penitentiary establishment must be provided with medical care necessary for protecting his/her life and health, all the reasonable medical examinations and treatment in a timely manner. Medical treatment provided in the penitentiary establishment must be of the same level ensured by the State for the general public. This does not mean that the person deprived of liberty shall be placed in the best medical facility existing outside penitentiary institution. However, unjustified refusal to place the prisoner in civil hospital in case of necessity, may create threats for violating Article 3 of the European Convention of Human Rights. The fact that the health of a prisoner is deteriorating, taken alone, is clearly insufficient for assessing that the treatment in aplace of deprivation of liberty was ineffective, however, sharp deterioration of health state in persons placed in penitentiary establishments may call into question adequacy of the medical services provided.
In addition to the above, the State Inspector’s Service notes that it is important that the privacy of the prisoner refusing food, his personal, especially, health data, is protected. Personal data related to health condition because of its sensitive nature is deemed as special category data.
Health data, due to its sensitive nature, belongs to a special category of data. In order to protect such information, national and international law establishes the principle of strict confidentiality. The person must have a feeling and a legitimate expectation that the information about his/her health will be confidential. Otherwise, he/she may refuse receiving medical services and providing important information to medical personnel, which may risk correct diagnosis and providing adequate treatment.
For the above reasons, the authority/official holding information about individual’s health is obliged to protect confidentiality of the information at hand and disclose the data only in cases prescribed by the law. At the same time, relevant authority/official must take measures to ensure protection of the data from accidental or unlawful disclosure and misuse through any other unlawful means.
Even in cases when there is a high public interest towards the health of an individual, it is necessary to strike a balance between the public interest and the right to protect personal data. Providing public with general information regarding health condition of an individual may be justified by public interest, however, as a rule, disclosure of the details related to the health of the individual cannot be justified.
According to the legislation, disclosure of the details of the health conditions and providing it to third parties is allowed with the consent of the individual concerned (the data subject). Even in this case, the information must be disclosed to a minimum, without prejudice to the dignity of the data subject and for a clearly defined legal purpose.
The State Inspector’s Service urges everyone to take special care when making a decision regarding a prisoner refusing food and assess the risks of violating human rights in each individual case.