Lexploria

Information Note on the Court’s case-law 18

May 2000

Rotaru v. Romania [GC] - 28341/95

Judgment 4.5.2000 [GC]

Article 8

Article 8-1

Respect for private life

Storing of personal data in security files: violation

Article 34

Victim

Partial reparation in respect of violation

(Extract from press release)

Facts : The applicant, Aurel Rotaru, a Romanian national, was born in 1921 and lives in Bârlad (Romania). In 1992 the applicant, who in 1948 had been sentenced to a year’s imprisonment for having expressed criticism of the communist regime established in 1946, brought an action in which he sought to be granted rights that Decree no. 118 of 1990 afforded persons who h ad been persecuted by the communist regime. In the proceedings which followed in the Bârlad Court of First Instance, one of the defendants, the Ministry of the Interior, submitted to the court a letter sent to it on 19 December 1990 by the Romanian Intelli gence Service, which contained, among other things, information about the applicant’s political activities between 1946 and 1948. According to the same letter, Mr Rotaru had been a member of the Christian Students’ Association, an extreme right-wing “legio nnaire” movement, in 1937.

The applicant considered that some of the information in question was false and defamatory – in particular, the allegation that he had been a member of the legionnaire movement – and brought proceedings against the Romanian Intelligence Service, claiming c ompensation for the non-pecuniary damage he had sustained and amendment or destruction of the file containing the untrue information. The claim was dismissed by the Bârlad Court of First Instance in a judgment that was upheld by the Bucharest Court of Appe al on 15 December 1994. Both courts held that they had no power to order amendment or destruction of the information in the letter of 19 December 1990 as it had been gathered by the State’s former security services, and the Romanian Intelligence Service ha d only been a depositary.

In a letter of 6 July 1997 the Director of the Romanian Intelligence Service informed the Ministry of Justice that after further checks in their registers it appeared that the information about being a member of the “legionnaire” movement referred not to the applicant but to another person of the same name.

In the light of that letter the applicant sought a review of the Court of Appeal’s judgment of 15 December 1994 and claimed damages. In a decision of 25 November 1997 the Buchar est Court of Appeal quashed the judgment of 15 December 1994 and declared the information about the applicant’s past membership of the “legionnaire” movement null and void. It did not rule on the claim for damages.

The applicant complained of an infringeme nt of his right to private life in that the Romanian Intelligence Service held a file containing information on his private life and that it was impossible to refute the untrue information. He relied on Article 8 of the European Convention on Human Rights. He also complained of the lack of an effective remedy before a national authority which could rule on his application for amendment or destruction of the file containing untrue information and of the courts’ refusal to consider his applications for costs and damages, which he said infringed his right to a court. He relied on Articles 13 and 6 of the Convention.

Law : The Government’s preliminary objections

(i) Applicant’s victim status

The Court noted that the applicant complained of the holding of a secret register containing information about him, whose existence had been publicly revealed during judicial proceedings. It considered that he could on that account claim to be the victim of a violation of the Convention.

As to the Bucharest Court of Appeal’s judgment of 25 November 1997, assuming that it could be considered that it did to some extent afford the applicant redress for the existence in his file of information that proved false, the Court took the view that su ch redress was only partial and that at all events it was insufficient under the case-law to deprive him of his status of victim.

The Court concluded that the applicant could claim to be a “victim” for the purposes of Article 34 of the Convention.

(ii) Exh austion of domestic remedies

As to the Government’s submission that the applicant had not exhausted domestic remedies, because he had not brought an action based on Decree no. 31/1954 on natural and legal persons, the Court noted that there was a close con nection 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 joined this objection to the merits.

Article 8 of the Convention - The Court noted that the RI S’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 op inion, such information, when systematically collected and stored in a file held by agents of the State, fell within the scope of “private life” for the purposes of Article 8 § 1 of the Convention. Article 8 consequently applied.

The Court considered that 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, had amounted to interference with his right to respect for family life as guaranteed by Article 8 § 1.

If it was n ot to contravene Article 8, such interference had to 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.

In that connection, the Court noted that in its judgment of 25 November 1997 the Bucharest Court of Appeal had confirmed that it was lawful for the RIS to hold the information as depositary of the archives of the former security services. That being so, the Court could conclude that the stor ing of information about the applicant’s private life had had a basis in Romanian law.

As regards the requirement of foreseeability, the Court noted that no provision of domestic law laid down any limits on the exercise of those powers. Thus, for instance, domestic law did not define the kind of information that could be recorded, the categories of people against whom surveillance measures such as gathering and keeping information could be taken, the circumstances in which such measures could be taken or th e procedure to be followed. Similarly, the Law did not lay down limits on the age of information held or the length of time for which it could be kept.

Section 45 empowered the RIS to take over for storage and use the archives that had belonged to the for mer intelligence services operating on Romanian territory and allowed inspection of RIS documents with the Director’s consent. The Court noted that the section contained 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 could be made of the information thus obtained.

It also noted that although section 2 of the Law empowered the relevant authorities to permit interferences necessary to prevent and cou nteract threats to national security, the ground allowing such interferences was not laid down with sufficient precision.

The Court also noted that the Romanian system for gathering and archiving information did not provide any safeguards, no supervision p rocedure being provided by Law no. 14/1992, whether while the measure ordered was in force or afterwards.

That being so, the Court considered that domestic law did not indicate with reasonable clarity the scope and manner of exercise of the relevant discre tion conferred on the public authorities. The Court concluded that the holding and use by the RIS of information on the applicant’s private life had not been “in accordance with the law”, a fact that sufficed to constitute a violation of Article 8. Further more, in the instant case that fact prevented the Court from reviewing the legitimacy of the aim pursued by the measures ordered and determining whether they had been – assuming the aim to have been legitimate – “necessary in a democratic society”. There h ad consequently been a violation of Article 8.

Conclusion : violation (16 votes to 1).

Article 13 of the Convention - The Court noted that Article 54 of the decree provided for a general action in the courts, designed to protect non-pecuniary rights that ha d been unlawfully infringed. The Bucharest Court of Appeal, however, had indicated in its judgment of 25 November 1997 that the RIS was empowered by domestic law to hold information on the applicant that came from the files of the former intelligence servi ces. The Government had not established the existence of any domestic decision that had set a precedent in the matter. It had therefore not been shown that such a remedy would have been effective. That being so, the relevant preliminary objection by the Go vernment had to be dismissed.

As to the machinery provided in Law no. 187/1999, assuming that the council provided for was set up, the Court noted that neither the provisions relied on by the respondent Government nor any other provisions of that law made it possible to challenge the holding, by agents of the State, of information on a person’s private life or the truth of such information. The supervisory machinery established by sections 15 and 16 related only to the disclosure of information about the id entity of some of the Securitate ’s collaborators and agents.

The Court had not been informed of any other provision of Romanian law that made it possible to challenge the holding, by the intelligence services, of information on the applicant’s private life or to refute the truth of such information. The Court consequently concluded that the applicant had been the victim of a violation of Article 13.

Conclusion : violation (unanimous).

Article 6 of the Convention - The applicant’s claim for compensation for n on-pecuniary damage and costs was a civil one within the meaning of Article 6 § 1, and the Bucharest Court of Appeal had had jurisdiction to deal with it.

The Court accordingly considered that the Court of Appeal’s failure to consider the claim had infring ed the applicant’s right to a fair hearing within the meaning of Article 6 § 1. There had therefore been a violation of Article 6 § 1 of the Convention also.

Conclusion : violation (unanimous).

Article 41 of the Convention - The Court therefore considered t hat the events in question had entailed serious interference with Mr Rotaru’s rights and that the sum of FRF 50,000 would afford fair redress for the non‑pecuniary damage sustained. The Court awarded the full amount claimed by the applicant, that is to say FRF 13,450, less the sum already paid by the Council of Europe in legal aid.

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