European Court of Human Rights
Case of Rotaru vs. Rumania judgment n.2834/95 of May 4th 2000 concerning the application of art. 8 of the Convention on Human Rights
CASE OF ROTARU v. ROMANIA
(Application no. 28341/95)
JUDGMENT
STRASBOURG
4 May 2000
In the case of Rotaru v. Romania,
The European Court of Human Rights, sitting as a Grand Chamber composed of the following judges:
Mr L. Wildhaber, President,
Mrs E. Palm,
Mr A. Pastor Ridruejo,
Mr G. Bonello,
Mr J. Makarczyk,
Mr R. Türmen,
Mr J.-P. Costa,
Mrs F. Tulkens,
Mrs V. Strį·nickß,
Mr P. Lorenzen,
Mr M. Fischbach,
Mr V. Butkevych,
Mr J. Casadevall,
Mr A.B. Baka,
Mr R. Maruste,
Mrs S. Botoucharova,
Mrs R. Weber, ad hoc judge,
and also of Mr M. de Salvia, Registrar,
Having deliberated in private on 19 January and 29 March 2000,
Delivers the following judgment, which was adopted on the last-mentioned date:
PROCEDURE
1. The case was referred to the Court in accordance with the provisions applicable prior to the entry into force of Protocol No. 11 to the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”)
(1) . Note by the Registry. Protocol No. 11 came into force on 1 November 1998. by the European Commission of Human Rights (“the Commission”) and by a Romanian national, Mr Aurel Rotaru (“the applicant”), on 3 and 29 June 1999 respectively (Article 5 § 4 of Protocol No.11 and former Articles 47 and 48 of the Convention).
2. The case originated in an application (no. 28341/95) against Romania lodged with the Commission on 22 February 1995 under former Article 25 of the Convention.
The applicant alleged a violation of his right to respect for his private life on account of the holding and use by the Romanian Intelligence Service of a file containing personal information and an infringement of his right of access to a court and his right to a remedy before a national authority that could rule on his application to have the file amended or destroyed.
3. The Commission declared the application admissible on 21 October 1996. In its report of 1 March 1999 (former Article 31 of the Convention), it expressed the opinion that there had been a violation of Articles 8 and 13 of the Convention. The full text of the Commission's opinion is reproduced as an annex to this judgment.
4. On 7 July 1999 a panel of the Grand Chamber determined that the case should be decided by the Grand Chamber (Rule 100 § 1 of the Rules of Court). Mr Bīrsan, the judge elected in respect of Romania, who had taken part in the Commission's examination of the case, withdrew from sitting in the Grand Chamber (Rule 28). The Romanian Government (“the Government”) accordingly appointed Mrs R. Weber to sit as an ad hoc judge (Article 27 § 2 of the Convention and Rule 29 § 1).
5. The applicant and the Government each filed a memorial.
6. A hearing took place in public in the Human Rights Building, Strasbourg, on 19 January 2000.
There appeared before the Court:
(a) for the Government
Mrs R. Rizoiu, Agent,
Mr M. Selegean, Legal Adviser, Ministry of Justice,
Mr T. CorlATean, Administrative Assistant, Permanent Delegation of Romania to the Council of Europe, Advisers;
(b) for the applicant
Mr I. Olteanu, Counsel,
Mr F. Rotaru, Representative and son of the applicant.
The Court heard addresses by Mrs Rizoiu, Mr Selegean, Mr Olteanu and Mr F. Rotaru.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
A. The applicant's conviction in 1948
7. The applicant, who was born in 1921, was a lawyer by profession. He is now retired and lives in Bārlad.
8. In 1946, after the communist regime had been established, the applicant, who was then a student, was refused permission by the prefect of the county of Vaslui to publish two pamphlets, “Student Soul” (Suflet de student) and “Protests” (Proteste), on the ground that they expressed anti-government sentiments.
9. Dissatisfied with that refusal, the applicant wrote two letters to the prefect in which he protested against the abolition of freedom of expression by the new people's regime. As a result of these letters, the applicant was arrested on 7 July 1948. On 20 September 1948 the Vaslui People's Court convicted the applicant on a charge of insulting behaviour and sentenced him to one year's imprisonment.
B. The proceedings brought under Legislative Decree no. 118/1990
10. In 1989, after the communist regime had been overthrown, the new government caused Legislative Decree no. 118/1990 to be passed, which granted certain rights to those who had been persecuted by the communist regime and who had not engaged in Fascist activities (see paragraph 30 below).
11. On 30 July 1990 the applicant brought proceedings in the Bārlad Court of First Instance against the Ministry of the Interior, the Ministry of Defence and the Vaslui County Employment Department, seeking to have the prison sentence that had been imposed in the 1948 judgment taken into account in the calculation of his length of service at work. He also sought payment of the corresponding retirement entitlements.
12. The court gave judgment on 11 January 1993. Relying on, among other things, the statements of witnesses called by the applicant (P.P. and G.D.), the 1948 judgment and depositions from the University of Iasi, it noted that between 1946 and 1949 the applicant had been persecuted on political grounds. It consequently allowed his application and awarded him the compensation provided for in Legislative Decree no. 118/1990.
13. As part of its defence in those proceedings, the Ministry of the Interior submitted to the court a letter of 19 December 1990 that it had received from the Romanian Intelligence Service (Serviciul Romān de Informaii – “the RIS”). The letter read as follows:
“In reply to your letter of 11 December 1990, here are the results of our checks on Aurel Rotaru, who lives in Bārlad:
(a) during his studies in the Faculty of Sciences at Iasi University the aforementioned person was a member of the Christian Students' Association, a 'legionnaire' [legionar]-type
(2) . That is, belonging to the Legion of Archangel Michael, an extreme right-wing, nationalist, anti-Semitic and paramilitary Romanian movement created in 1927 as a breakaway movement from a movement of similar tendencies, the League for Christian National Defence. The legionnaire movement gave birth to a number of political parties which influenced Romanian politics during the 1930s and 1940s.] movement.
(b) in 1946 he applied to the Vaslui censorship office for permission to publish two pamphlets entitled 'Student Soul' and 'Protests' but his request was turned down because of the anti-government sentiments expressed in them;
(c) he belonged to the youth section of the National Peasant Party, as appears from a statement he made in 1948;
(d) he has no criminal record and, contrary to what he maintains, was not imprisoned during the period he mentions;
(e) in 1946-48 he was summoned by the security services on several occasions because of his ideas and questioned about his views ...”
C. The action for damages against the RIS
14. The applicant brought proceedings against the RIS, stating that he had never been a member of the Romanian legionnaire movement, that he had not been a student in the Faculty of Sciences at Iasi University but in the Faculty of Law and that some of the other information provided by the RIS in its letter of 19 December 1990 was false and defamatory. Under the Civil Code provisions on liability in tort he claimed damages from the RIS for the non-pecuniary damage he had sustained. He also sought an order, without relying on any particular legal provision, that the RIS should amend or destroy the file containing the information on his supposed legionnaire past.
15. In a judgment of 6 January 1993 the Bucharest Court of First Instance dismissed the applicant's application on the ground that the statutory provisions on tortious liability did not make it possible to allow it.
16. The applicant appealed.
17. On 18 January 1994 the Bucharest County Court found that the information that the applicant had been a legionnaire was false. However, it dismissed the appeal on the ground that the RIS could not be held to have been negligent as it was merely the depositary of the impugned information, and that in the absence of negligence the rules on tortious liability did not apply. The court noted that the information had been gathered by the State's security services, which, when they were disbanded in 1949, had forwarded it to the Securitate (the State Security Department), which had in its turn forwarded it to the RIS in 1990.
18. On 15 December 1994 the Bucharest Court of Appeal dismissed an appeal by the applicant against the judgment of 18 January 1994 in the following terms:
“... the Court finds that the applicant's appeal is ill-founded. As the statutory depositary of the archives of the former State security services, the RIS in letter no. 705567/1990 forwarded to the Ministry of the Interior information concerning the applicant's activities while he was a university student, as set out by the State security services. It is therefore apparent that the judicial authorities have no jurisdiction to destroy or amend the information in the letter written by the RIS, which is merely the depositary of the former State security services' archives. In dismissing his application, the judicial authorities did not infringe either Article 1 of the Constitution or Article 3 of the Civil Code but stayed the proceedings in accordance with the jurisdictional rules laid down in the Code of Civil Procedure.”
D. The action for damages against the judges
19. On 13 June 1995 the applicant brought an action for damages against all the judges who had dismissed his application to have the file amended or destroyed. He based his action on Article 3 of the Civil Code, relating to denials of justice, and Article 6 of the Convention. According to the applicant, both the County Court and the Vaslui Court of Appeal refused to register his action.
In this connection, the applicant lodged a fresh application with the Commission on 5 August 1998, which was registered under file no. 46597/98 and is currently pending before the Court.
E. The application for review
20. In June 1997 the Minister of Justice informed the Director of the RIS that the European Commission of Human Rights had declared the applicant's present application admissible. The Minister consequently asked the Director of the RIS to check once again whether the applicant had been a member of the legionnaire movement and, if that information proved to be false, to inform the applicant of the fact so that he could subsequently make use of it in any application for review.
21. On 6 July 1997 the Director of the RIS informed the Minister of Justice that the information in the letter of 19 December 1990 that the applicant had been a legionnaire had been found by consulting their archives, in which a table drawn up by the Iasi security office had been discovered that mentioned, in entry 165, one Aurel Rotaru, a “science student, rank-and-file member of the Christian Students' Association, legionnaire”. The Director of the RIS mentioned that the table was dated 15 February 1937 and expressed the view that “since at that date Mr Rotaru was only 16, he could not have been a student in the Faculty of Sciences. [That being so,] we consider that there has been a regrettable mistake which led us to suppose that Mr Aurel Rotaru of Bārlad was the same person as the one who appears in that table as a member of a legionnaire-type organisation. Detailed checks made by our institution in the counties of Iasi and Vaslui have not provided any other information to confirm that the two names refer to the same person.”
22. A copy of that letter was sent to the applicant, who on 25 July 1997 applied to the Bucharest Court of Appeal to review its decision of 15 December 1994. In his application he sought a declaration that the defamatory documents were null and void, damages in the amount of one leu in respect of non-pecuniary damage and reimbursement of all the costs and expenses incurred since the beginning of the proceedings, adjusted for inflation.
23. The RIS submitted that the application for review should be dismissed, holding that, in the light of the RIS Director's letter of 6 July 1997, the application had become devoid of purpose.
24. In a final decision of 25 November 1997 the Bucharest Court of Appeal quashed the decision of 15 December 1994 and allowed the applicant's action, in the following terms:
“It appears from letter no. 4173 of 5 July 1997 from the Romanian Intelligence Service ... that in the archives (shelf-mark 53172, vol. 796, p. 243) there is a table which lists the names of the members of legionnaire organisations who do not live in Iasi, entry 165 of which contains the following: 'Rotaru Aurel – science student, rank-and-file member of the Christian Students' Association, legionnaire'. Since the applicant was barely 16 when that table was drawn up, on 15 February 1937, and since he did not attend lectures in the Iasi Faculty of Sciences, and since it appears from subsequent checks in the documents listing the names of the members of legionnaire organisations that the name 'Aurel Rotaru' does not seem to be connected with an individual living in Bārlad whose personal details correspond to those of the applicant, the Romanian Intelligence Service considers that a regrettable mistake has been made and that the person mentioned in the table is not the applicant.
Having regard to this letter, the Court holds that it satisfies the requirements of Article 322-5 of the Code of Civil Procedure as it is such as to completely alter the facts previously established. The document contains details which it was not possible to submit at any earlier stage in the proceedings for a reason beyond the applicant's control.
That being so, the date on which the Securitate was formed and the way in which the former security services were organised are not relevant factors. Similarly, the fact, albeit a true one, that the Romanian Intelligence Service is only the depositary of the archives of the former security services is irrelevant. What matters is the fact that letter no. 705567 of 19 December 1990 from the Romanian Intelligence Service (Military Unit no. 05007) contains details which do not relate to the applicant, so that the information in that letter is false in respect of him and, if maintained, would seriously injure his dignity and honour.
In the light of the foregoing and in accordance with the aforementioned statutory provision, the application for review is justified and must be allowed. It follows that the earlier decisions in this case must be quashed and that the applicant's action as lodged is allowed.”
25. The court did not make any order as to damages or costs.
(....)
THE LAW
I. the government's preliminary objections
A. Applicant's victim status
33. As their primary submission, the Government maintained – as they had done before the Commission – that the applicant could no longer claim to be the “victim” of a violation of the Convention within the meaning of Article 34. They pointed out that the applicant had won his case in the Bucharest Court of Appeal, since that court had, in its judgment of 25 November 1997, declared null and void the details contained in the letter of 19 December 1990 from the Romanian Intelligence Service (Serviciul Romān de Informaii – “the RIS”), and, in the Government's view, the only infringement of the applicant's rights stemmed from that letter.
At all events, the Government continued, the applicant now had available to him the procedure put in place by Law no. 187 of 20 October 1999, which afforded him all the safeguards required by the Convention for the protection of his rights.
34. The applicant requested the Court to continue its consideration of the case. He argued that the circumstances that had given rise to the application had not fundamentally changed following the decision of 25 November 1997. Firstly, the mere fact of acknowledging, after the Commission's admissibility decision, that a mistake had been made could not amount to adequate redress for the violations of the Convention. Secondly, he had still not had access to his secret file, which was not only stored by the RIS but also used by it. It was consequently not to be excluded that even after the decision of 25 November 1997 the RIS might make use of the information that the applicant had supposedly been a legionnaire and of any other information in his file.
35. The Court reiterates, as to the concept of victim, that an individual may, under certain conditions, claim to be the victim of a violation occasioned by the mere existence of secret measures or of legislation permitting secret measures, without having to allege that such measures were in fact applied to him (see the Klass and Others v. Germany judgment of 6 September 1978, Series A no. 28, pp. 18-19, § 34). Furthermore, “a decision or measure favourable to the applicant is not in principle sufficient to deprive him of his status as a 'victim' unless the national authorities have acknowledged, either expressly or in substance, and then afforded redress for, the breach of the Convention” (see the Amuur v. France judgment of 25 June 1996, Reports of Judgments and Decisions 1996-III, p. 846, § 36, and Dalban v. Romania [GC], no. 28114/95, § 44, ECHR 1999-VI).
36. In the instant case the Court notes that the applicant complained of the holding of a secret register containing information about him, whose existence was publicly revealed during judicial proceedings. It considers that he may on that account claim to be the victim of a violation of the Convention.
The Court also notes that in a judgment of 25 November 1997 the Bucharest Court of Appeal found that the details given in the letter of 19 December 1990 about the alleged fact that the applicant had been a legionnaire were false, in that they probably related to someone else with the same name, and declared them null and void.
Assuming that it may be considered that that judgment did, to some extent, afford the applicant redress for the existence in his file of information that proved false, the Court takes the view that such redress is only partial and that at all events it is insufficient under the case-law to deprive him of his status of victim. Apart from the foregoing considerations as to his being a victim as a result of the holding of a secret file, the Court points to the following factors in particular.
The information that the applicant had supposedly been a legionnaire is apparently still recorded in the RIS's files and no mention of the judgment of 25 November 1997 has been made in the file concerned. Furthermore, the Court of Appeal expressed no view – and was not entitled to do so – on the fact that the RIS was authorised by Romanian legislation to hold and make use of files opened by the former intelligence services, which contained information about the applicant. A key complaint made to the Court by the applicant was that domestic law did not lay down with sufficient precision the manner in which the RIS must carry out its work and that it did not provide citizens with an effective remedy before a national authority.
Lastly, the Bucharest Court of Appeal in its judgment of 25 November 1997 did not rule on the applicant's claim for compensation for non-pecuniary damage and for costs and expenses.
37. As to Law no. 187 of 20 October 1999, which the Government relied on, the Court considers, having regard to the circumstances of this case, that it is not relevant (see paragraph 71 below).
38. The Court concludes that the applicant may claim to be a “victim” for the purposes of Article 34 of the Convention. The objection must therefore be dismissed.
B. Exhaustion of domestic remedies
39. The Government also submitted that the application was inadmissible for failure to exhaust domestic remedies. They argued that the applicant had had a remedy which he had not made use of, namely an action based on Decree no. 31/1954 on natural and legal persons, under which the court may order any measure to restrain injury to a person's reputation.
40. The Court notes that there is a close connection between the Government's argument on this point and the merits of the complaints made by the applicant under Article 13 of the Convention. It accordingly joins this objection to the merits (see paragraph 70 below).
ii. alleged violation of article 8 of the convention
41. The applicant complained that the RIS held and could at any moment make use of information about his private life, some of which was false and defamatory. He alleged a violation of Article 8 of the Convention, which provides:
“1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
A. Applicability of Article 8
42. The Government denied that Article 8 was applicable, arguing that the information in the RIS's letter of 19 December 1990 related not to the applicant's private life but to his public life. By deciding to engage in political activities and have pamphlets published, the applicant had implicitly waived his right to the “anonymity” inherent in private life. As to his questioning by the police and his criminal record, they were public information.
43. The Court reiterates that the storing of information relating to an individual's private life in a secret register and the release of such information come within the scope of Article 8 § 1 (see the Leander v. Sweden judgment of 26 March 1987, Series A no. 116, p. 22, § 48).
Respect for private life must also comprise to a certain degree the right to establish and develop relationships with other human beings: furthermore, there is no reason of principle to justify excluding activities of a professional or business nature from the notion of “private life” (see the Niemietz v. Germany judgment of 16 December 1992, Series A no. 251-B, pp. 33-34, § 29, and the Halford v. the United Kingdom judgment of 25 June 1997, Reports 1997-III, pp. 1015-16, §§ 42-46).
The Court has already emphasised the correspondence of this broad interpretation with that of the Council of Europe's Convention of 28 January 1981 for the Protection of Individuals with regard to Automatic Processing of Personal Data, which came into force on 1 October 1985 and whose purpose is “to secure ... for every individual ... respect for his rights and fundamental freedoms, and in particular his right to privacy with regard to automatic processing of personal data relating to him” (Article 1), such personal data being defined in Article 2 as “any information relating to an identified or identifiable individual” (see Amann v. Switzerland [GC], no. 27798/95, § 65, ECHR 2000-II).
Moreover, public information can fall within the scope of private life where it is systematically collected and stored in files held by the authorities. That is all the truer where such information concerns a person's distant past.
44. In the instant case the Court notes that the RIS's letter of 19 December 1990 contained various pieces of information about the applicant's life, in particular his studies, his political activities and his criminal record, some of which had been gathered more than fifty years earlier. In the Court's opinion, such information, when systematically collected and stored in a file held by agents of the State, falls within the scope of “private life” for the purposes of Article 8 § 1 of the Convention. That is all the more so in the instant case as some of the information has been declared false and is likely to injure the applicant's reputation.
Article 8 consequently applies.
B. Compliance with Article 8
1.Whether there was interference
45. In the Government's submission, three conditions had to be satisfied before there could be said to be interference with the right to respect for private life: information had to have been stored about the person concerned; use had to have been made of it; and it had to be impossible for the person concerned to refute it. In the instant case, however, both the storing and the use of the information relating to the applicant had occurred before Romania ratified the Convention. As to the alleged impossibility of refuting the information, the Government maintained that, on the contrary, it was open to the applicant to refute untrue information but that he had not made use of the appropriate remedies.
46. The Court points out that both the storing by a public authority of information relating to an individual's private life and the use of it and the refusal to allow an opportunity for it to be refuted amount to interference with the right to respect for private life secured in Article 8 § 1 of the Convention (see the following judgments: Leander cited above, p. 22, § 48; Kopp v. Switzerland, 25 March 1998, Reports 1998-II, p. 540, § 53; and Amann cited above, §§ 69 and 80).
In the instant case it is clear beyond peradventure from the RIS's letter of 19 December 1990 that the RIS held information about the applicant's private life. While that letter admittedly predates the Convention's entry into force in respect of Romania on 20 June 1994, the Government did not submit that the RIS had ceased to hold information about the applicant's private life after that date. The Court also notes that use was made of some of the information after that date, for example in connection with the application for review which led to the decision of 25 November 1997.
Both the storing of that information and the use of it, which were coupled with a refusal to allow the applicant an opportunity to refute it, amounted to interference with his right to respect for his private life as guaranteed by Article 8 § 1.
2. Justification for the interference
26. The cardinal issue that arises is whether the interference so found is justifiable under paragraph 2 of Article 8. That paragraph, since it provides for an exception to a right guaranteed by the Convention, is to be interpreted narrowly. While the Court recognises that intelligence services may legitimately exist in a democratic society, it reiterates that powers of secret surveillance of citizens are tolerable under the Convention only in so far as strictly necessary for safeguarding the democratic institutions (see the Klass and Others judgment cited above, p. 21, § 42).
27. If it is not to contravene Article 8, such interference must have been “in accordance with the law”, pursue a legitimate aim under paragraph 2 and, furthermore, be necessary in a democratic society in order to achieve that aim.
28. The Government considered that the measures in question were in accordance with the law. The information concerned had been disclosed by the RIS in connection with a procedure provided in Legislative Decree no. 118/1990, which was designed to afford redress to persons persecuted by the communist regime. By the terms of Article 11 of that legislative decree, no measure of redress could be granted to persons who had engaged in Fascist activities.
29. In the applicant's submission, the keeping and use of the file on him were not in accordance with the law, since domestic law was not sufficiently precise to indicate to citizens in what circumstances and on what terms the public authorities were empowered to file information on their private life and make use of it. Furthermore, domestic law did not define with sufficient precision the manner of exercise of those powers and did not contain any safeguards against abuses.
30. The Commission considered that domestic law did not define with sufficient precision the circumstances in which the RIS could archive, release and use information relating to the applicant's private life.
312. The Court reiterates its settled case-law, according to which the expression “in accordance with the law” not only requires that the impugned measure should have some basis in domestic law, but also refers to the quality of the law in question, requiring that it should be accessible to the person concerned and foreseeable as to its effects (see, as the most recent authority, Amann cited above, § 50).
53. In the instant case the Court notes that Article 6 of Legislative Decree no. 118/1990, which the Government relied on as the basis for the impugned measure, allows any individual to prove that he satisfies the requirements for having certain rights conferred on him, by means of official documents issued by the relevant authorities or any other material of evidential value. However, the provision does not lay down the manner in which such evidence may be obtained and does not confer on the RIS any power to gather, store or release information about a person's private life.
The Court must therefore determine whether Law no. 14/1992 on the organisation and operation of the RIS, which was likewise relied on by the Government, can provide the legal basis for these measures. In this connection, it notes that the law in question authorises the RIS to gather, store and make use of information affecting national security. The Court has doubts as to the relevance to national security of the information held on the applicant. Nevertheless, it reiterates that it is primarily for the national authorities, notably the courts, to interpret and apply domestic law (see the Kopp judgment cited above, p. 541, § 59) and notes that in its judgment of 25 November 1997 the Bucharest Court of Appeal confirmed that it was lawful for the RIS to hold this information as depositary of the archives of the former security services.
That being so, the Court may conclude that the storing of information about the applicant's private life had a basis in Romanian law.
54. As to the accessibility of the law, the Court regards that requirement as having been satisfied, seeing that Law no. 14/1992 was published in Romania's Official Gazette on 3 March 1992.
32. As regards the requirement of foreseeability, the Court reiterates that a rule is “foreseeable” if it is formulated with sufficient precision to enable any individual – if need be with appropriate advice – to regulate his conduct. The Court has stressed the importance of this concept with regard to secret surveillance in the following terms (see the Malone v. the United Kingdom judgment of 2 August 1984, Series A no. 82, p. 32, § 67, reiterated in Amann cited above, § 56):
“The Court would reiterate its opinion that the phrase 'in accordance with the law' does not merely refer back to domestic law but also relates to the quality of the 'law', requiring it to be compatible with the rule of law, which is expressly mentioned in the preamble to the Convention ... The phrase thus implies – and this follows from the object and purpose of Article 8 – that there must be a measure of legal protection in domestic law against arbitrary interferences by public authorities with the rights safeguarded by paragraph 1 ... Especially where a power of the executive is exercised in secret, the risks of arbitrariness are evident ...
... Since the implementation in practice of measures of secret surveillance of communications is not open to scrutiny by the individuals concerned or the public at large, it would be contrary to the rule of law for the legal discretion granted to the executive to be expressed in terms of an unfettered power. Consequently, the law must indicate the scope of any such discretion conferred on the competent authorities and the manner of its exercise with sufficient clarity, having regard to the legitimate aim of the measure in question, to give the individual adequate protection against arbitrary interference.”
33. The “quality” of the legal rules relied on in this case must therefore be scrutinised, with a view, in particular, to ascertaining whether domestic law laid down with sufficient precision the circumstances in which the RIS could store and make use of information relating to the applicant's private life.
34. The Court notes in this connection that section 8 of Law no. 14/1992 provides that information affecting national security may be gathered, recorded and archived in secret files.
No provision of domestic law, however, lays down any limits on the exercise of those powers. Thus, for instance, the aforesaid Law does not define the kind of information that may be recorded, the categories of people against whom surveillance measures such as gathering and keeping information may be taken, the circumstances in which such measures may be taken or the procedure to be followed. Similarly, the Law does not lay down limits on the age of information held or the length of time for which it may be kept.
Section 45 of the Law empowers the RIS to take over for storage and use the archives that belonged to the former intelligence services operating on Romanian territory and allows inspection of RIS documents with the Director's consent.
The Court notes that this section contains no explicit, detailed provision concerning the persons authorised to consult the files, the nature of the files, the procedure to be followed or the use that may be made of the information thus obtained.
35. It also notes that although section 2 of the Law empowers the relevant authorities to permit interferences necessary to prevent and counteract threats to national security, the ground allowing such interferences is not laid down with sufficient precision.
36. The Court must also be satisfied that there exist adequate and effective safeguards against abuse, since a system of secret surveillance designed to protect national security entails the risk of undermining or even destroying democracy on the ground of defending it (see the Klass and Others judgment cited above, pp. 23-24, §§ 49-50).
In order for systems of secret surveillance to be compatible with Article 8 of the Convention, they must contain safeguards established by law which apply to the supervision of the relevant services' activities. Supervision procedures must follow the values of a democratic society as faithfully as possible, in particular the rule of law, which is expressly referred to in the Preamble to the Convention. The rule of law implies, inter alia, that interference by the executive authorities with an individual's rights should be subject to effective supervision, which should normally be carried out by the judiciary, at least in the last resort, since judicial control affords the best guarantees of independence, impartiality and a proper procedure (see the Klass and Others judgment cited above, pp. 25-26, § 55).
37. In the instant case the Court notes that the Romanian system for gathering and archiving information does not provide such safeguards, no supervision procedure being provided by Law no. 14/1992, whether while the measure ordered is in force or afterwards.
38. That being so, the Court considers that domestic law does not indicate with reasonable clarity the scope and manner of exercise of the relevant discretion conferred on the public authorities.
39. The Court concludes that the holding and use by the RIS of information on the applicant's private life were not “in accordance with the law”, a fact that suffices to constitute a violation of Article 8. Furthermore, in the instant case that fact prevents the Court from reviewing the legitimacy of the aim pursued by the measures ordered and determining whether they were – assuming the aim to have been legitimate – “necessary in a democratic society”.
40. There has consequently been a violation of Article 8.
(....)
FOR THESE REASONS, THE COURT
1. Dismisses unanimously the Government's preliminary objection that the applicant was no longer a victim;
2. Joins to the merits unanimously the Government's preliminary objection of failure to exhaust domestic remedies and dismisses it unanimously after consideration of the merits;
3. Holds by sixteen votes to one that there has been a violation of Article 8 of the Convention;
4. Holds unanimously that there has been a violation of Article 13 of the Convention;
5. Holds unanimously that there has been a violation of Article 6 § 1 of the Convention;
6. Holds unanimously
(a) that the respondent State is to pay the applicant, within three months, FRF 50,000 (fifty thousand French francs) in respect of non-pecuniary damage and FRF 13,450 (thirteen thousand four hundred and fifty French francs) for costs and expenses, less FRF 9,759.72 (nine thousand seven hundred and fifty-nine French francs seventy-two centimes) to be converted into Romanian lei at the rate applicable at the date of settlement;
(b) that simple interest at an annual rate of 2.74% shall be payable from the expiry of the above-mentioned three months until settlement;
7. Dismisses unanimously the remainder of the applicant's claim for just satisfaction.
Done in English and in French, and delivered at a public hearing in the Human Rights Building, Strasbourg, on 4 May 2000.
Luzius Wildhaber
President
Michele de Salvia
Registrar
In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the following separate opinions are annexed to this judgment:
(a) concurring opinion of Mr Wildhaber joined by Mr Makarczyk, Mr Türmen, Mr Costa, Mrs Tulkens, Mr Casadevall and Mrs Weber;
(b) concurring opinion of Mr Lorenzen;
(c) partly dissenting opinion of Mr Bonello.
L.W.
M. de S.
(.....)
Partly dissenting opinion of Judge Bonello
1. The majority found a violation of Article 8, having held its provisions applicable to the facts of the present case. I voted with the majority in finding other violations of the Convention, but I cannot endorse the applicability of Article 8.
2. Article 8 protects the individual's private life. At the core of that protection lies the right of every person to have the more intimate segments of his being excluded from public inquisitiveness and scrutiny. There are reserved zones in our person and in our spirit which the Convention requires should remain locked. It is illegitimate to probe for, store, classify or divulge data which refer to those innermost spheres of activity, orientation or conviction, sheltered behind the walls of confidentiality.
3. On the other hand, activities which are, by their very nature, public and which are actually nourished by publicity, are well outside the protection of Article 8.
4. The secret data held by the State security services which the applicant requested to see related in substance to: (a) the active membership of one Aurel Rotaru in a political movement; (b) his application to publish two political pamphlets; (c) his affiliation to the youth movement of a political party; and (d) the fact that he had no criminal record (see paragraph 13 of the judgment).
5. The first three items of information refer exclusively to public pursuits. Eminently public, I would add, in so far as political and publishing activism requires, and depends on, the maximum publicity for its existence and success. The records did not note that the applicant voted for some particular political party – that, of course, would have invaded his no-entry zone of confidentiality. The records, in substance, register how Aurel Rotaru manifested publicly his public militancy in particular public organisations.
6. In what way does the storage of records relating to the eminently public pursuits of an individual violate his right to privacy? Until now the Court has held, unimpeachably in my view, that the protection of Article 8 extends to confidential matters, such as medical and health data, sexual activity and orientation, family kinship and, possibly, professional and business relations and other intimate areas in which public intrusion would be an unwarranted encroachment on the natural barriers of self. Public activism in public political parties has, I suggest, little in common with the ratio which elevates the protection of privacy into a fundamental human right.
7. The fourth element contained in the applicant's file referred to an annotation that he had no criminal record. The Court found even that to be a violation of the applicant's right to privacy. The Court underlined that the security services' notes (including some information which was over fifty years old) contained the applicant's criminal record, and concluded that “such information, when systematically collected and stored in a file held by agents of the State, falls within the scope of 'private life' for the purposes of Article 8 § 1 of the Convention” (see paragraph 44 of the judgment).
8. This, in my view, overreaches dangerously the scope of Article 8. Stating that the storage of a person's criminal record by police authorities (even when, as in the present case, it proves that the individual has no criminal antecedents) calls Article 8 into play can have frighteningly far-reaching consequences vis-ą-vis “the interests of national security, public safety and the prevention of disorder or crime” – all values that Article 8 expressly sets out to protect.
9. I would accept, albeit on sufferance, that the storage of criminal records by the police may possibly amount to an interference with the right to privacy, but would hasten to add that such interference is justified in the interest of combating crime and of national security. The Court did not find it necessary to do so.
10. Of course, my unease is only focused on the censure by the Court of the storage of criminal records. The wanton and illegitimate disclosure of the contents of those records could very well raise issues under Article 8.
11. The Court seems to have given particular weight to the fact that “some of the information has been declared false and is likely to injure the applicant's reputation” (see paragraph 44 of the judgment). These concerns pose two separate questions: that of the falsity of the information, and that of its defamatory nature.
12. Some of the data in the applicant's security file actually referred to another person sharing the applicant's name, and not to him. This, undoubtedly, rendered that information “false” in the applicant's regard. But does falsity relating to matters in the public domain alchemise that public information into private data? The logic behind this sequence of propositions simply passes me by.
13. Again, I have no difficulty in acknowledging that the “false” data about the applicant, stored by the security services, were likely to injure his reputation. Quite tentatively, the Court seems lately to be moving towards the notion that “reputation” could well be an issue under Article 8
(3) . See the Fayed v. the United Kingdom judgment of 21 September 1994, Series A no. 294-B, pp. 50-51, § 66-68, and the Niemietz v. Germany judgment of 16 December 1992, Series A no. 251-B, pp. 35-36, § 37.. Opening up Article 8 to these new perspectives would add an exciting extra dimension to human rights protection. But the Court, in my view, ought to handle this reform frontally, and not tuck it in, almost surreptitiously, as a penumbral fringe of the right to privacy.
14. Had I shared the majority's views that the right to privacy also protects outstandingly public data, I would then have proceeded to find a violation of Article 8, as I fully subscribe to the Court's conclusion that the holding and use by security forces of the information relating to the applicant were not “in accordance with the law” (see paragraphs 57-63 of the judgment).