Johanna Westeson - The ICHRP

In Europe, mandatory HIV testing has largely been abolished. Widespread mandatory
testing was previously practiced in Eastern Europe and the former Soviet Union in the
wake of the emergence of the HIV crisis, but several countries in the former Eastern Bloc
have now included provisions in their HIV/AIDS regulations explicitly stating that testing
must be conducted on a voluntary basis. This distinguishes these states from most other
European countries, where mandatory testing was never practiced on a large scale and
where the voluntary nature of testing therefore is not explicitly emphasized in legal text.
One area where mandatory testing has arisen in Europe is with regard to HIV testing
following criminal activity, in particular of sex offenders after rape who do not consent to
testing. While in Scotland a general proposal to allow for compulsory testing of assailants
was rejected on human rights grounds, in the Netherlands such testing following rape has
been allowed with reference to the victim’s right to eliminate the uncertainty raised by the
risk of transmission.
2. Council of Europe
Neither the European Court of Human Rights nor the European Committee for Social
Rights has addressed the issue of mandatory HIV-testing.
3. European Union
European Court of Justice
The case X v. Commission 139 mainly concerns issues of disclosure of HIV-status, but is
worth mentioning in the context of mandatory HIV-testing. It relates to the principles
underlying the opposition to mandatory testing in that the Court makes clear that a person’s
refusal to undergo an HIV test has to be respected in its entirety and cannot be
circumvented by giving the test another name.
The appellant in the case had applied for employment as a typist with the Commission, and
had been asked to undergo a medical examination, including various biological tests. One
of these was a lymphocyte count of which he had been unaware. He had declined the
suggestion that he would also be tested for HIV. The medical officer reported him unfit for
recruitment. The appellant argued that the lymphocyte count to which he had been
subjected equated a dissimulated HIV antibody screening test, to which he had withheld
his consent. Carrying out this test without his informed consent, he contended, constituted
an interference with his physical integrity and therefore violated Article 8 of the European
Convention of Human Rights.
The European Court of Justice stated that medical tests in order to establish fitness for
recruitment are lawful, and that a person has to be found physically fit for the performance
of duties concerned before hire. However, in the case the appellant had expressly refused
to undergo the HIV screening test. The Court held that any test that was likely to point to
or establish the existence of HIV/AIDS was therefore also precluded. The lymphocyte
count in question apparently had provided the medical officer with sufficient information
to draw the conclusion that the appellant may be a carrier of HIV. Therefore, the decision
that the appellant had been found unfit for the position concerned should be annulled.
139 Case C-404/92 P, decided on 5 October 1994, appeal against a judgment of the Court of First Instance.
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