Interim Resolution ResDH(2005)57

concerning the judgment of the European Court of Human Rights of 4 May 2000 in the case of Rotaru against Romania

(Adopted by the Committee of Ministers on 5 July 2005 at the 933rd meeting of the Ministers ' Deputies)

The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention for the P rotection of Human Rights and Fundamental Freedoms, as amended by P rotocol No. 11 (hereinafter referred to as “the Convention”),

Having regard to the final judgment of the European Court of Human Rights in the Rotaru case delivered on 4 May 2000 and transmitted the same day to the Committee of Ministers under Article 46 of the Convention;

Recalling that the case originated in an application (No. 28341/95) against Romania , lodged with the European Commission of Human Rights on 22 February 1995 under former Article 25 of the Co n vention by Mr Aurel Rotaru , a Romania n national, and that the Commission declared admissible the complaint concerning the breach of the applicant ' s right to respect for his private life on account of the holding and use by the Romania n Intelligence Service (“RIS”) of a file containing personal information concerning, in particular, his alleged belonging in 1937 to the Romania n “legionary” movement, as well as the complaint concerning the breach of the right of access to a court and of the right to an effective remedy before a national authority that could rule on an application to have the file amended or destroyed;

Recalling that the case was brought before the Court by the Commission on 3 June 1999 and by the applicant on 29 June 1999;

Whereas in its judgment of 4 May 2000 the Court held inter alia :

- by sixteen votes to one, that there had been a violation of Article 8 of the Convention;

- unanimously, that there had been a violation of Article 13 of the Convention;

- unanimously, that there had been a violation of Article 6, paragraph 1, of the Convention;

- unanimously, that the government of the respondent state was to pay the applicant, within three months, 50,000 French francs in respect of non-pecuniary damage and 3,690.28 French francs in respect of costs and expenses, to be converted into Romania n lei at the rate applicable on the date of settlement, and that simple interest at an annual rate of 2.74% would be payable on those sums from the expiry of the above-mentioned three months until settlement;

- dismissed, unanimously, the remainder of the claim for just satisfa c tion;

Having regard to the Rules adopted by the Committee of Ministers concerning the application of Article 46, paragraph 2, of the Convention;

Having invited the government of the respondent state to inform it of the mea s ures which had been taken in consequence of the judgment of 4 May 2000, having regard to Romania ' s obligation under Article 46, paragraph 1, of the Conve n tion to abide by it;

Recalling that High Contracting P arties are required rapidly to take the necessary measures to this end herewith, in particular by preventing new violations of the Convention similar to those found in the Court ' s judgments ;

Recalling the Declaration of the Committee of Minister of 12 May 2004 on ensuring the effectiveness of the implementation of the European Convention on Human Rights at national and European levels, as well as the recommendations mentioned therein aiming at reinforcing the implementation of the European Convention on Human Rights at domestic level;

Having satisfied itself that on 2 August 2000, within the time-limit set, the government of the respondent state paid the a p plicant the sums provided in the judgment of 4 May 2000;

Noting the information provided by the Romania n authorities concerning the individual measures, as well as the measures taken so far to prevent new, similar violations (this information is summarised in the appendix to this resolution);

Recalling that the Court noted, under Article 8 of the Convention, that the domestic law did not lay down with sufficient precision the limits to be respected in the exercise of the power to gather, record and archive information concerning national security (paragraph 57 of the judgment), as well as the absence of a procedure to supervise the activity of the secret services to ensure respect of the values of a democratic society; supervision which should be carried out, at least in the last resort, by the judiciary (paragraph 59 of the judgment);

Also recalling that the Court concluded, under Article 13 of the Convention, that no provision of Romania n law allowed the applicant to challenge the holding by the intelligence services of information on his private life or to refute the truth of such information (paragraph 72 of the judgment);

Recalling that the case also concerned a violation of Article 6, paragraph 1, of the Convention on account of the failure of the Bucharest court of appeal, in November 1997, to rule on the applicant ' s request for compensation for the non-pecuniary damage caused by the use of erroneous information, as well as on his request for reimbursement of the costs incurred in order to obtain the rectification of the information concerning him (paragraph 77 of the judgment);

Noting with interest the new Law No. 535/2004 on the prevention and repression of terrorism which now provides for a procedure of judicial supervision of all secret surveillance measures, also in the cases involving threats to the national security;

Noting also with interest the information submitted by the Romania n authorities concerning the legislative procedure currently under way with a view to reforming Law No. 51/1991 on national security;

Noting in addition the procedure provided by Law No. 187/1999 which, in spite of the shortcomings identified by the European Court (see paragraph 71 of the judgment), nevertheless allows interested persons to inspect the files created in their respect (between 1945 and 1989) by the organs of the former Securitate , to obtain certificates concerning their possible collaboration with the former Securitate and to contest before a court the content of such certificates;

Noting nevertheless with regret that, more than five years after the date of the judgment, several shortcomings identified by the European Court still do not seem to have been remedied, in particular concerning the procedure to be followed in order to have access to the archives taken over by the RIS from former secret services (others than the Securitate ), the absence of specific regulation concerning the age of the information which could be stored by the authorities, or the lack of a possibility to contest the holding of this information and, save for the cases provided for by Law No. 187/1999, their truthfulness,

CALLS U P ON the Romania n authorities rapidly to adopt the legislative reforms necessary to respond to the criticism made by the Court in its judgment concerning the Romania n system of gathering and storing of information by the secret services,

DECLARES, after having examined the information supplied by the Government of Romania , that it has provisionally exe r cised its functions under Article 46, paragraph 2, of the Convention in this case,

DECIDES to resume consideration of this case, as far as general measures are concerned, when the legislative reforms have been accomplished or, at the latest, at one of its first meetings in 2006.

Appendix to Interim Resolution ResDH(2005)57

Information provided by the Government of Romania during the examination of the Rotaru case by the Committee of Ministers

Individual Measures

The Romania n authorities recall that the case dealt with the use made by the Romania n Intelligence Service, within the context of court proceedings, of information concerning the applicant, information obtained by consulting the archives taken over from the former secret services. Because of a similarity of names, some of this information, dealing with the applicant ' s political activity in the 1930s, was erroneous.

To avoid any future confusion of this kind which could be harmful to the applicant, the judgment of the European Court has been appended by the Romania n Intelligence Service to the file from which the information at issue was obtained, an annotation having been made in this respect.

General Measures

The Romania n authorities underline that the secret services ' activities concerning the gathering of information on national security are regulated by the framework law on national security (Law No. 51/1991). This law defines (Article 3) the cases which may be considered as threats to national security and which justify the adoption of specific measures of secret surveillance of the persons suspected of having committed such acts. The law also regulates (Article 13) the procedure to be followed when having recourse to surveillance measures which interfere with the individual ' s right to respect for private life, such as telephone tapping, and provides the possibility for all persons claiming that their rights and freedoms have been infringed to seise the parliamentary commissions dealing with defence and public order (Article 16).

Since the delivery of the European Court ' s judgment in the Rotaru case, several bills concerning the reform of Law No. 51/1991 have been submitted to the P arliament. They aim at the modernisation of the law, with a view to adapting it to the new forms of threats to national security (in particular within the context of the fight against international terrorism), as well with a view to reinforcing the guarantees given to individuals ' fundamental rights. In this respect, the Romania n authorities are taking into account the Guidelines on human rights and the fight against terrorism adopted by the Committee of Ministers on 11 July 2002.

This legislative process has nevertheless not yet led to the reform of Law No. 51/1991, particularly in view of the complexity and of the sensitive nature of the subject matter. The procedure concerning the authorisation of surveillance measures provided for by Law No. 51/1991 has nevertheless been modified by Law No. 281/2003 on the amendment of the Code of Criminal P rocedure, which instituted a judicial control of secret surveillance measures. Subsequently, Law No. 535/2004 on the prevention and repression of terrorism has brought further changes, so that the authorisation of secret surveillance measures, in all the cases of presumed threats to national security provided for by Law no. 51/1991, comes today within the competence of judges of the High Court of Justice and Cassation.

Concerning the other aspects criticised by the European Court in the Rotaru judgment, they will be taken into account in the context of the legislative reform which is currently under way. New provisions will be enacted regulating issues such as the control of the activity of secret services, the age of information which may be held, as well as establishing a procedure allowing interested persons to challenge the information which might be held by the secret services. In this respect, the publication of the Rotaru judgment in the Official Journal in January 2001 has already allowed the Romania n courts to take account of the European Court ' s findings, in particular of those concerning the right, guaranteed by Article 13 of the Convention, to have the possibility to challenge the holding by the intelligence services of personal data, to refute their truthfulness and to request that the inexact data be modified.

Moreover, it is envisaged to regulate in a detailed way the procedure to be followed to have access to information contained in the archives taken over by the RIS from the former secret services, as well as to indicate the use that may be made of the information thus obtained. In this respect, the competent authorities envisage the possibility to amend Law No. 14/1992, which regulates the activity of the RIS, after the amendment of the framework law on the protection of national security.

In addition, the Romania n authorities recall the provisions of Law No. 187/1999 on citizens ' access to the personal files held on them by the Securitate and aimed at unmasking that organisation ' s nature as a political police force. Even if this law is not applicable to the situation of the applicant in the Rotaru case, it nevertheless allows interested persons to inspect the files created in respect of them by the organs of the former Securitate (between 1945 and 1989), to obtain certificates indicating whether they had collaborated or not with the former Securitate and to contest before a court the content of such certificates.

Finally, the Romania n authorities believe that the domestic courts will afford direct effect to the Rotaru judgment so as to avoid new violations of Article 6, paragraph 1, of the Convention similar to that found by the European Court in the present case, where the Bucharest Court of Appeal failed to consider the applicant ' s claim for compensation and for the reimbursement of the costs incurred in order to obtain the rectification of the data at issue.