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VI. Human Rights Standards in International and Romanian Law

The Romanian Constitution provides that international treaties in force are part of domestic legislation, and in cases of conflict, international law applies unless domestic law grants greater protections.²¹³ Romania is party to international and regional treaties requiring it to ensure children’s right to protection and care without discrimination, including their rights to health, education, information, and privacy. These treaties include the International Covenant on Civil and Political Rights; the International Covenant on Economic, Social, and Cultural Rights; the Convention on the Elimination of all forms of Discrimination against Women; and the Convention on the Rights of the Child.²¹⁴ Romania is also a party to the regional European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR), and the European Social Charter.²¹⁵ Both treaties are instruments of the Council of Europe. The Committee of Ministers of the Council of Europe, one of the central institutions of the Council, has also adopted a recommendation on “The ethical issues of HIV infection in the health care and social settings”²¹⁶ setting out guidelines on how the rights of persons living with HIV should be respected in line with Council of Europe member states’ public health policy.

Children’s Right to Protection and Care

The Convention on the Rights of the Child in article 19 requires states parties to take all appropriate measures to protect children from “all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse, while in the care of parent(s), legal guardians(s) or any other person who has the care of the child.” Article 20(1) provides that “a child temporarily or permanently deprived of his or her family environment, or in whose own best interests cannot be allowed to remain in that environment, shall be entitled to special protection and assistance provided by the State.” This provision reinforces article 24(1) of the International Covenant on Civil and Political Rights, which guarantees every child “the right to such measures of protection as are required by his status as a minor.”

Romania’s regional human rights commitments impose similar obligations to ensure that “children and young persons have the right to appropriate social, legal and economic protection”²¹⁷ and that they are protected from ill-treatment or abuse. Article 3 of the ECHR requires States to take measures designed to ensure that individuals are not subjected to torture or inhuman or degrading treatment, including such ill-treatment administered by private individuals. These measures should provide effective protection, in particular, of children and other vulnerable persons, and include reasonable steps to prevent ill-treatment of which the authorities had or ought to have had knowledge.²¹⁸ Individuals must have an effective remedy for preventing such abuses and a mechanism for establishing any liability of State officials or bodies for acts or omissions involving the breach of their rights. Compensation for the non-pecuniary damage flowing from the breach should in principle be available as part of the range of redress.²¹⁹

Regarding children affected and orphaned by HIV, the Committee on the Rights of the Child (the body that interprets the Convention on the Rights of the Child) has interpreted articles 3 (best interests of the child), 20 (children deprived of their family environment), and 25 (review of treatment) of the Convention to include the requirement that states provide assistance “so that, to the maximum extent possible, children can remain within existing family structures.” Where this is not possible, the committee calls on states to provide, “as far as possible, for family-type alternative care (e.g. foster care)” and notes that “any form of institutionalized care for children should only serve as a measure of last resort.”²²⁰

Article 23 of the Convention recognizes the additional right of the mentally or physically disabled child to special care and, subject to available resources, to appropriate assistance “designed to ensure that the disabled child has effective access to and receives education, training, health care services, rehabilitation services, preparation for employment and recreation opportunities in a manner conducive to the child’s achieving the fullest possible social integration and individual development, including his or her cultural and spiritual development.”

Article 107 of Romania’s Law 272/2004 on the Protection and Promotion of the Rights of the Child provides for day care, family-type, and residential services for children at risk of or suffering from abuse and neglect.²²¹ The law defines abuse as “any voluntary action of a person who has a relation of responsibility, trust or authority toward the child, through which the life, the normal physical, mental, spiritual, moral and social development, the bodily integrity, and the physical and mental health of the child are endangered.”²²² Neglect is “the omission, either voluntarily or involuntarily,” of any responsibility “which results in endangerment of the physical, mental, spiritual, moral and social development, the bodily integrity, and the physical and mental health of the child.”²²³ The law also prohibits “physical punishments of any kind” and deprivation of rights which may have the same result as neglect, and applies to children in the family and in “any institution that ensures the protection, care and education of children.”²²⁴

Upon notification of abuse or neglect, the local General Directorate for Social Assistance and Child Protection must investigate and provide any needed day care, family, or residential services.²²⁵ The law grants representatives of the General Directorate for Social Assistance and Child Protection the right to enter institutions and private homes to investigate allegations of abuse and neglect, and requires police to provide support in these investigations.²²⁶ In cases of serious ill-treatment, the Criminal Code also provides for criminal punishments.²²⁷

The Right to Protection from Discrimination

The Convention on the Rights of the Child in article 2 requires states to take all appropriate measures to ensure that children are protected from discrimination “irrespective of the child’s or his or her parent’s or legal guardian’s race, colour, sex, language, religion, political or other opinion, national, ethnic or social origin, property, disability, birth or other status.” The Committee on the Rights of the Child has interpreted “‘other status’ . . . to include HIV/AIDS status of the child or his/her parents(s).”²²⁸ The International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights, the Convention on the Elimination of Discrimination Against Women, and the European Convention for the Protection of Human Rights and Fundamental Freedoms contain similar protections and are applicable to children and adults.²²⁹

In addition to prohibiting discrimination, international law also requires states to take affirmative steps to address it. The Committee on the Rights of the Child has underlined “the necessity of providing legal, economic and social protection to affected children to ensure their access to education, inheritance, shelter and health and social services, as well as to make them feel secure in disclosing their HIV status and that of their family members when the children deem it appropriate.”²³⁰ The UN HIV/AIDS and Human Rights International Guidelines recommend that states “enact or strengthen antidiscrimination and other protective laws that protect vulnerable groups, people living with HIV/AIDS and people with disabilities from discrimination in both the public and private sectors... and provide for speedy and effective administrative and civil remedies.”²³¹

Romania’s Law 48/2002 on Preventing and Sanctioning all Forms of Discrimination defines discrimination as: “any difference, exclusion, restriction or preference… aiming to or resulting in a restriction or prevention of the equal recognition, use or exercise of human rights and fundamental freedoms in the political, economic, social and cultural field or in any other fields of public life.”²³² In 2004 the law was amended to explicitly include HIV among protected categories.²³³ The law provides for a National Council for Combating Discrimination, with powers to investigate complaints, issue small fines, and propose affirmative actions, but thus far use of this mechanism has been limited (see Section V, above).

Law 48/2002 also permits victims of discrimination to bring a case before the civil courts and ask for damages and for re-establishing the situation before the discrimination occurred.²³⁴ However, such actions require more time, resources and knowledge than is available to many people living with HIV or to the NGOs working in this field.²³⁵

The Right to the Highest Attainable Standard of Health

All individuals have the right to enjoy the highest attainable standard of mental and physical health, a right guaranteed by the International Covenant on Economic, Social and Cultural Rights, the Convention on the Rights of the Child, and the Convention on the Elimination of All Forms of Discrimination against Women.²³⁶ This right imposes an obligation on states to take steps necessary for the prevention, treatment and control of epidemic and other diseases.²³⁷ The committee charged with interpreting the covenant has stated that “health facilities, goods and services must be accessible to all, especially the most vulnerable or marginalized sections of the population, in law and in fact, without discrimination on any of the prohibited grounds,” which include “health status (including HIV/AIDS).”²³⁸

The right to the highest attainable standard of health is subject to “progressive realization,” under which states parties have a “specific and continuing obligation to move as expeditiously and effectively as possible towards the full realization of [the right].”²³⁹ States must guarantee certain core obligations as part of the right to health. These include ensuring nondiscriminatory access to health facilities, especially for vulnerable or marginalized groups; providing essential drugs; ensuring equitable distribution of all health facilities, goods and services; adopting and implementing a national public health strategy and plan of action with clear benchmarks and deadlines; ensuring reproductive, maternal and child care; taking measures to prevent, treat and control epidemic and endemic diseases; and providing education and access to information for important health problems.²⁴⁰ According to the committee charged with interpreting the convention, to justify the failure to meet at least these minimum core obligations as based on a lack of available resources, a state party “must demonstrate that every effort has been made to use all resources that are at its disposition in an effort to satisfy, as a matter of priority, those minimum obligations.”²⁴¹

According to the Committee on the Rights of the Child, states parties’ obligations “extend to ensuring that children have sustained and equal access to comprehensive treatment and care, including necessary HIV-related drugs, goods and services on a basis of non-discrimination.”²⁴² Expressing concern that “children with disabilities, indigenous children, children belonging to minorities, children living in rural areas, children living in extreme poverty or children who are otherwise marginalized in society” may not be able to access the HIV-related health services that are available, the Committee has noted that states parties “must ensure that services are provided to the maximum extent possible to all children living within their borders.”²⁴³

Recognizing that adolescents have special health and development needs, the Committee on the Rights of the Child has further emphasized that the right to health obligates states “To ensure that adolescents have access to the information that is essential for their health and development and that they have opportunities to participate in decisions affecting their health (notably through informed consent and the right of confidentiality), to acquire life skills, to obtain adequate and age-appropriate information, and to make appropriate health behaviour choices”; to “ensure that health facilities, goods and services, including counselling and health services for mental and sexual and reproductive health, of appropriate quality and sensitive to adolescents’ concerns are available to all adolescents”; and to “implement measures for the prevention of mental disorders and the promotion of mental health of adolescents.”²⁴⁴ The Committee specifies that:

Before parents give their consent, adolescents need to have a chance to express their views freely and their views should be given due weight, in accordance with article 12 of the Convention. However, if the adolescent is of sufficient maturity, informed consent shall be obtained from the adolescent her/himself, while informing the parents if that is in the “best interest of the child” (art. 3).

With regard to privacy and confidentiality, and the related issue of informed consent to treatment, States parties should (a) enact laws or regulations to ensure that confidential advice concerning treatment is provided to adolescents so that they can give their informed consent. Such laws or regulations should stipulate an age for this process, or refer to the evolving capacity of the child; and (b) provide training for health personnel on the rights of adolescents to privacy and confidentiality, to be informed about planned treatment and to give their informed consent to treatment.²⁴⁵

Romania’s Law on the Protection of the Rights of the Child guarantees children the right to access to medical services and to medication adequate to their condition and paid for by the state.²⁴⁶ Law 584/2002 on Measures to Prevent the Spread of AIDS in Romania and to Protect Persons Infected with HIV or Suffering from AIDS further guarantees people living with HIV free specialized medical care and free antiretroviral treatment as well as free treatment for diseases associated with HIV.²⁴⁷ Medical facilities and doctors are obligated to provide care in accordance with their training and the patient’s symptoms.²⁴⁸ However, the government has yet to issue well developed implementing norms for Law 584/2002, despite the requirement in article 20 that “in 30 days from the date when the law comes into force, a normative order with the provisions for the enforcement of the law will be drafted and adopted as Governmental Decision.”²⁴⁹ The norms issued in November 2004 merely reinforce the obligation of governmental authorities to adopt norms, take prevention measures and measures for social protection, and regulate on the confidentiality of data, the treatment, the professional training and the funding of HIV-related activities, without establishing clear deadlines, sanctions and responsibilities.²⁵⁰

The Right to Education

Under international law, the right to education is set forth in the Universal Declaration of Human Rights, the International Covenant on Economic, Social and Cultural Rights, the Convention on the Rights of the Child, and the Convention on the Elimination of All Forms of Discrimination against Women.²⁵¹ These instruments specify that primary education must be “compulsory and available free to all.”²⁵² Secondary education, including vocational education, must be “available and accessible to every child,” and states parties must “take appropriate measures, such as the introduction of free education and offering financial assistance in case of need.”²⁵³ In addition, the Convention on the Rights of the Child obligates states parties “to take measures to encourage regular attendance at school and the reduction of drop-out rates.”²⁵⁴ Both primary and secondary education must include elements of “availability, accessibility, acceptability and adaptability.”²⁵⁵ The Committee on Economic, Social and Cultural Rights defines availability to mean “functioning educational institutions and programmes… to be available in sufficient quantity within the jurisdiction.”²⁵⁶ Educational institutions must be accessible to all without discrimination, be “within safe physical reach,” and be “affordable to all.”²⁵⁷ The Committee elaborated that primary education should be “free to all,” and that states parties are “required to progressively introduce free secondary and higher education”²⁵⁸ (see below).

Under the European Social Charter, Romania has undertaken to “provide children and young persons a free primary and secondary education as well as to encourage regular attendance at schools.”

Like the right to health, the right to education is considered a “progressive right”: by becoming party to the international instruments, a state agrees “to take steps . . . to the maximum of its available resources” to the full realization of the right to education.²⁵⁹ However, while the right to education is a right of progressive implementation, the prohibition on discrimination is not. The Committee on Economic, Social and Cultural Rights has stated: “The prohibition against discrimination enshrined in article 2(2) of the [International Covenant on Economic, Social and Cultural Rights] is subject to neither progressive realization nor the availability of resources; it applies fully and immediately to all aspects of education and encompasses all internationally prohibited grounds of discrimination.”²⁶⁰ Thus, regardless of its resources, the state must provide education “on the basis of equal opportunity,” “without discrimination of any kind irrespective of the child’s race, colour, sex, language, religion, political or other opinion, national, ethnic or social origin, property, disability, birth or other status.”²⁶¹ “Other status,” as explained earlier, includes children’s or their parents’ HIV status.

The Committee on the Rights of the Child has emphasized that children affected by HIV must have equal access to education, stating that states parties are obligated “to ensure that primary education is available to all children, whether infected, orphaned or otherwise affected by HIV/AIDS” and that “States parties must make adequate provision to ensure that children affected by HIV/AIDS can stay in school.”²⁶²

Romanian law provides for free primary and secondary schooling, and education is compulsory through tenth grade or until age eighteen.²⁶³ The right to education of children living with HIV is further specified in Law 584/2002, which states in part that “persons infected with HIV or suffering of AIDS are entitled to social protection and nondiscriminatory treatment in regard of their right to education,” including their integration in the formal education system.²⁶⁴

The Right to Information

International human rights law provides for the right to “seek, receive and impart information of all kinds,” which includes information about an individual’s own health.²⁶⁵ The Convention on the Rights of the Child further requires states to “ensure that all segments of society, in particular parents and children, are informed, have access to education and are supported in the use of basic knowledge of child health.”²⁶⁶ The Committee on the Rights of the Child, has stated in its general comment on HIV/AIDS that children have the right to access adequate information related to HIV prevention, emphasizing that

Effective HIV/AIDS prevention requires States to refrain from censoring, withholding or intentionally misrepresenting health-related information, including sexual education and information, and that, consistent with their obligations to ensure the right to life, survival and development of the child (art. 6) States parties must ensure that children have the ability to acquire the knowledge and skills to protect themselves and others as they begin to express their sexuality.²⁶⁷

One aspect of the right to adequate information is the right of a child to information on his or her own HIV-status:

The accessibility of voluntary, confidential HIV counselling and testing services, with due attention to the evolving capacities of the child, is fundamental to the rights and health of children. Such services are critical to children’s ability to reduce the risk of contracting or transmitting HIV, to access HIV-specific care, treatment and support, and to better plan for their futures. Consistent with their obligation under article 24 of the Convention to ensure that no child is deprived of his or her right of access to necessary health services, States parties should ensure access to voluntary, confidential HIV counselling and testing for all children.²⁶⁸

Access to health information is also essential to realizing the human right to the highest attainable standard of health and, ultimately, the right to life.²⁶⁹ Article 12 of the International Covenant on Economic, Social and Cultural Rights specifically obliges governments to take all necessary steps for the “prevention, treatment and control of epidemic . . . diseases,” such as HIV.²⁷⁰ The UN body responsible for monitoring the implementation of the International Covenant on Economic, Social and Cultural Rights has interpreted article 12 as requiring “the establishment of prevention and education programmes for behaviour-related health concerns such as sexually transmitted diseases, in particular HIV/AIDS.”²⁷¹ In language similar to that of the Committee on the Rights of the Child, the Committee on Economic, Social and Cultural Rights further notes:

States should refrain from limiting access to contraceptives and other means of maintaining sexual and reproductive health, from censoring, withholding or intentionally misrepresenting health-related information, including sexual education and information, as well as from preventing people’s participation in health-related matters. . . . States should also ensure that third parties do not limit people’s access to health-related information and services.²⁷²

The Committee on the Rights of the Child has stated that “accessibility of voluntary, confidential HIV counselling and testing services, with due attention to the evolving capacities of the child, is fundamental to the rights and health of children.”²⁷³

The European Social Charter requires that in order to exercise the right to protection of health, states undertake “to provide advisory and educational facilities for the promotion of health and the encouragement of individual responsibility in matters of health.”²⁷⁴

Romania’s Law 46/2003 on the Rights of the Patient obligates doctors to inform their patients of the diagnosis, the general health, the evolution of the disease, and the treatment recommended as well as the alternatives, but this provision is not enforced in the case of children and young adults living with HIV if parents or guardians object to disclosure (see Section IV, above).²⁷⁵ Law 584/2002 creates an obligation for dissemination of information about HIV transmission and about appropriate behavior toward persons living with AIDS in all educational institutions, as well as the dissemination of information to the general public about HIV and transmission.²⁷⁶

The Right to Privacy

International law requires states to protect individuals against “arbitrary or unlawful interference” with “privacy, family, home or correspondence” and against “unlawful attacks on honour and reputation.”²⁷⁷ In interpreting this right, the Committee on the Rights of the Child has stated that states “must protect the confidentiality of HIV test results... including within health and social welfare settings, and information on the HIV status of children may not be disclosed to third parties, including parents, without the child’s consent.”²⁷⁸ Interpreting the parallel provision of the International Covenant on Civil and Political Rights, the Human Rights Committee further specifies that states must take effective measures “to ensure that information concerning a person’s private life does not reach the hands of persons who are not authorized by law to receive, process and use it, and is never used for purposes incompatible with the Covenant,” and that individuals have the right to request rectification or elimination of files containing incorrect personal data or data collected or processed contrary to the law.²⁷⁹

At a regional level, the European Court of Human Rights, the European Committee of Social Rights and the Committee of Ministers of the Council of Europe have all addressed the crucial issue of privacy and confidentiality concerning a person’s health and HIV status. In the case of Z v. Finland, the European Court of Human Rights considered 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 and family 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. It is crucial not only to respect the sense of privacy of a patient but also to preserve his or her confidence in the medical profession and in the health services in general.

    Without such protection, those in need of medical assistance may be deterred from revealing such information of a personal and intimate nature as may be necessary in order to receive appropriate treatment and, even, from seeking such assistance, thereby endangering their own health and, in the case of transmissible diseases, that of the community….

    The domestic law must therefore afford appropriate safeguards to prevent any such communication or disclosure of personal health data as may be inconsistent with the guarantees in Article 8 of the Convention….

… The above considerations are especially valid as regards protection of the confidentiality of information about a person’s HIV infection. The disclosure of such data may dramatically affect his or her private and family life, as well as social and employment situation, by exposing him or her to opprobrium and the risk of ostracism. For this reason it may also discourage persons from seeking diagnosis or treatment and thus undermine any preventive efforts by the community to contain the pandemic …²⁸⁰   

The Committee of Ministers of the Council of Europe also set out guidelines on how confidentiality is to be implemented in public health policy in its recommendation on “The ethical issues of HIV infection in the health care and social settings.”²⁸¹

Romanian law contains some provisions that could be used to protect the rights of persons living with HIV, but these provisions lack effective enforcement mechanisms and do not cover all breaches of confidentiality. Law 584/2002 requires employers, civil servants who have access to data, and health system employees to maintain confidentiality of data regarding persons living with HIV, but the law does not provide sanctions for those who breach confidentiality.²⁸² In addition, these categories do not include many of the positions known to be common sources of breaches of confidentiality, including teachers, mayors, social workers, postal workers, and staff of the local general directorates for social assistance and protection of the child.

A subsequent law addresses confidentiality of medical information in greater detail, but only applies to medical personnel and also lacks clear and effective sanctions. Law 46/2003 on the Rights of the Patient states that “all the information regarding the situation of the patient, the results of the medical investigations, the diagnosis and prognosis, the treatment, the personal data are confidential even after the death of the patient” and “confidential information can be provided only when the patient agrees explicitly or when the law creates a clear obligation.”²⁸³ The law states that “if the medical personnel fails to observe the confidentiality of the patient’s data and the confidentiality of the medical act, as well as other rights of the patient, disciplinary, administrative or criminal liability are triggered in conformity with the law,” but it does not provide a mechanism for reporting, investigating, or enforcing sanctions in cases of beaches of confidentiality.²⁸⁴

The Romanian Criminal Code punishes the illegal disclosure of professional secrets with a criminal fine or a prison term of between three and twelve months if the disclosure causes damage to a person. ²⁸⁵ However, criminal investigations can only be initiated based on a complaint by the victim, who must show that the disclosed information is a professional secret, defined as information received or conveyed in the course of the individual’s professional activity, and must prove that damage occurred. As we discussed above, many individuals living with HIV are reluctant to pursue legal complaints about breaches of confidentiality or discrimination for fear of drawing greater attention to themselves, particularly as court proceedings and court documents may themselves be sources of breaches of confidentiality.

Law 584/2002 creates an obligation for the patient to inform the doctor about the sero-positive status but does not sanction those who do not.²⁸⁶