European Court of Human Rights

 

 

SECOND SECTION

CASE OF X v. THE REPUBLIC OF MOLDOVA

(Application no. 43529/13)

 

 

 

 

 

 

JUDGMENT

STRASBOURG

30 November 2021

 

This judgment is final but it may be subject to editorial revision.

In the case of X v. the Republic of Moldova,

The European Court of Human Rights (Second Section), sitting as a Committee composed of:

          Carlo Ranzoni, President,
          Valeriu Griţco,
          Marko Bošnjak, judges,
and Hasan Bakırcı, Deputy Section Registrar,

Having regard to:

the application (no. 43529/13) against the Republic of Moldova lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by X, a Moldovan national (“the applicant”), on 27 June 2013;

the decision to give notice to the Moldovan Government (“the Government”) of the complaint concerning the alleged violation of the right to protection of privacy and to declare inadmissible the remainder of the application;

the parties’ observations;

Having deliberated in private on 9 November 2021,

Delivers the following judgment, which was adopted on that date:

INTRODUCTION

1.  The application concerns the alleged breach of the applicant’s right to respect for his privacy, protected by Article 8 of the Convention, as a result of the inclusion of information about his past convictions in criminal record certificates.

THE FACTS

2.  The applicant was born in 1979 and lives in Chișinău. The applicant, who had been granted legal aid, was represented by Mr V. Ţurcan, a lawyer who practiced in Chișinău before his death in 2021.

3.  The Government were represented by their Agent, Mr O. Rotari.

4.  The facts of the case, as submitted by the parties, may be summarised as follows.

5.  In 1996 the applicant was convicted of theft and sentenced to two years’ imprisonment, which was suspended for one year. Under the applicable legislation (see paragraph 17 below) his criminal record (antecedente penale) expired at the end of the one-year probation.

6.  On 11 August 2010 the applicant obtained from the Ministry of the Interior (“the MAI”) a certificate, according to which he “does not have a criminal record and is not a wanted person on the territory of the Republic of Moldova”. That certificate expired after three months.

7.  On 25 January 2011 the applicant asked for a new certificate. However, owing to the changes introduced by the MAI Order no. 372 (see paragraph 19 below), the new certificate indicated that he “has been subjected to criminal responsibility and has no criminal record. He is not a wanted person on the territory of the Republic of Moldova.”

8.  On 2 February 2011 the applicant asked the MAI to issue him another certificate, without the information that he had been subjected to criminal responsibility. He said he would have no possibility of obtaining positive responses if he submitted a certificate mentioning his having been subjected to criminal responsibility to institutions such as a consulate (in order to move to another country or obtain employment there), financial institutions (in order to obtain a credit) or potential employers.

9.  The MAI rejected that request on 8 February 2011, with reference to Order no. 372.

10.  On 15 March 2011 the applicant lodged an administrative court action against the MAI, which was left without examination owing to procedural irregularities.

11.  On 9 November 2011 he asked again the MAI to issue him an amended certificate, repeating his arguments made in the request of 2 February 2011. He also asked to annul the part of the MAI Order no. 372 which provides for the phrase “has been subjected to criminal responsibility” as unlawful. This request was rejected on 25 November 2011, with a similar explanation as before.

12.  On 12 December 2011 the applicant lodged an administrative court action against the MAI, asking for a court decision ordering the MAI to issue him an amended certificate, not including the phrase “has been subjected to criminal responsibility” and the annulment of the relevant phrase from Order no. 372.

13.  On 15 March 2012 the Chișinău Court of Appeal rejected his claims as unfounded, finding that Order no. 372 had been lawfully adopted. It also found that the certificate only confirmed objective realities that could not be erased from existence; it did not produce any legal effects, the MAI not breaching his presumption of innocence. That judgment was quashed by the Supreme Court of Justice on procedural grounds on 23 May 2012 and the case was sent for re-examination by the lower court.

14.  On 25 September 2012 the Chișinău Court of Appeal rejected the applicant’s claims, essentially repeating the reasoning in the judgment of 15 March 2012. In his appeal, the applicant essentially repeated his previous arguments.

15.  On 16 January 2013 the Supreme Court of Justice upheld the lower court’s judgment, essentially repeating its reasoning. That judgment was final.

RELEVANT LEGAL FRAMEWORK

16.  Recommendation No. R (84) 10 of the Committee of Ministers on the criminal record and rehabilitation of convicted persons (adopted on 21 June 1984) notes in its preamble that any use of criminal record data outside the criminal trial context may jeopardise the convicted person’s chances of social reintegration and should therefore be restricted “to the utmost”. It invited member States to review their legislation with a view to introducing a number of measures where necessary, including provisions limiting the communication of criminal record information and provisions on rehabilitation of offenders, which would imply the prohibition of any reference to the convictions of a rehabilitated person except on compelling grounds provided for in national law.

17.  Under Article 111(1)(d) of the Criminal Code, it shall be considered that a person does not have a criminal record (antecedente penale) if his/her sentence is suspended and, during the probation period, the suspension of the conviction is not annulled.

18.  Under Article 9 of Law no. 216-XV on integrated automated information system on evidence of offences, of criminal cases and of offenders (in force since 8 August 2003), the Ministry of Interior shall adopt model forms for primary evidence acts, as well as the manner of filling them in and issuing them. The Prosecutor General shall then confirm them.

19.  In accordance with point 29 of the Annex to Order no. 372 of the Ministry of Internal Affairs (in force since 19 November 2010), “a person who has been convicted and who has served his/her sentence, and who under ... section 111 Of the Criminal Code is considered to not have a criminal record shall be issued a criminal record certificate, indicating that the person has been subjected to criminal responsibility and does not have a criminal record. (S)he is not a wanted person on the territory of the Republic of Moldova.”

20.  Under MAI Order no. 208 of 28 March 2008 the criminal record certificate issued to a person who had been convicted but no longer had a criminal record mentioned that the person had no criminal record and was not a wanted person on the territory of the Republic of Moldova. Under MAI Order no. 253 of 31 July 2012, the relevant certificate stated that the person was not registered in the Register of criminalistic and criminological information of the Republic of Moldova. The same provision can be found in the MAI Order no. 353 of 9 June 2017, which is currently in force.

THE LAW

I.         ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION

21.  The applicant complained that the inclusion of information about his past convictions in the criminal record certificate was in breach of Article 8 of the Convention, which reads as follows:

“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.    Admissibility

22.  The Court notes that this complaint is neither manifestly ill-founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible.

B.    Merits

1.      The parties’ submissions

23.  The applicant submitted that the fact of mentioning his past conviction years after the expiry of the criminal record related to the relevant offence prevented his reintegration into society and constituted an infringement of his right to respect for private life. While law-enforcement agencies had the right to access information about past convictions, such information should not be disclosed to the public. This resulted in his de facto continuous punishment for a minor offence committed more than a decade earlier, without taking into account the seriousness of the offence. He had studied to be an accountant but could not obtain a job in his speciality or integrate in society, due to bias in Moldovan society against formerly convicted persons. While persons convicted of certain offences could legitimately be considered as posing an increased risk if allowed to continue their activities in the positions or trades in which they had committed the offences, the legislator had taken that into account by allowing the courts to prohibit offenders from continuing such activities for up to a certain limit of time. Since no such additional sanction was applied to the applicant, there was no reason to punish him by mentioning his past conviction in a certificate requested by employers.

24.  The applicant added that the issue raised by him was a systemic problem, since subsequent MAI Orders did not fully redress the situation and a person with past convictions could still be issued a certificate revealing the existence of such past convictions.

25.  The Government acknowledged that Article 8 was applicable and that there had been an interference with the applicant’s rights guaranteed under that provision in the present case. They argued, however, that it was the applicant himself who decided whether to submit his criminal record certificate to various authorities or persons. Moreover, the authorities fully complied with the MAI Order no. 372 which was in force at the time. Law‑enforcement agencies had to have access to criminal records of past offenders, which contributed to the efficient investigation of crimes. In fact, the criminal record certificate only certified objective reality concerning the existence or absence of a past criminal conviction and created no further legal effects for the applicant. At the same time, the law allowed the person concerned to ask for the deletion of information about him/herself.

2.     The Court’s assessment

(a)    Applicability of Article 8

 

27.  It also recalls that information such as a person’s criminal record, 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 (Rotaru, cited above, § 44, and M.M. v. the United Kingdom, no. 24029/07, § 188, 13 November 2012).

28.  Having regard to the foregoing, the Court finds that Article 8 is applicable in the present case.

(b)    Whether there was an interference

29.  The Government did not contest that making available to third parties information about the applicant’s past conviction constituted an interference with his rights guaranteed under Article 8. For its part, the Court also finds that such disclosure to third parties interfered with the applicant’s right to private life.

 

(c)    Whether the interference was in accordance with the law

31.  It is undisputed by the parties that the interference was based on the MAI Order no. 372 in force at the relevant time (see paragraph 19 above). However, the applicant submitted that that Order was unlawful since it had not been confirmed by the Prosecutor General, as required by law no. 216 (see paragraph 18 above).

32.  The Government did not comment on this submission.

33.  The Court notes that it was not presented with evidence of confirmation by the Prosecutor General of the forms elaborated by the MAI serving as the basis for issuing the applicant’s criminal record. In the absence of any arguments by the Government to contradict the applicant’s submission in this respect, it concludes that the criminal record issued to him was not “in accordance with the law”.

34.  This conclusion is sufficient for the Court to find a violation of Article 8 of the Convention. It will therefore not examine whether the interference pursued one or more legitimate aims and was also “necessary in a democratic society” within the meaning of that provision.

II.      APPLICATION OF ARTICLE 41 OF THE CONVENTION

35.  Article 41 of the Convention provides:

“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”

A.    Damage

36.  The applicant claimed 6,000 euros (EUR) in respect of pecuniary damage, referring to his inability to work as an account or auditor. He also claimed EUR 9,000 for non-pecuniary damage caused to him by including information about his past conviction in the relevant certificate and thus affecting his ability to find work.

37.  The Government considered that the amounts claimed were unsubstantiated and not justified given the absence of a violation of the applicant’s rights.

38.  The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim.

39.  However, it awards the applicant EUR 4,500 in respect of non‑pecuniary damage, plus any tax that may be chargeable.

B.     Costs and expenses

40.  The applicant also claimed EUR 1,256 for the legal costs, to be paid directly to the lawyer’s bank account, and 1,242 Moldovan lei (MDL, the equivalent of approximately EUR 58) in other expenses incurred before the domestic courts and the Court. He relied on a contract with his lawyer, as well as on receipts of postal expenses and costs to travel to Chișinău to court hearings.

41.  The Government submitted that, even assuming a violation of the applicant’s rights, the sum claimed was excessive in view of the nature of the case and of the arguments made.

42.  According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these were actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court awards the applicant the amount claimed in full.

C.    Default interest

43.  The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1.      Declares the application admissible;

2.      Holds that there has been a violation of Article 8 of the Convention;

3.      Holds,

(a)  that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:

(i) EUR 4,500 (four thousand five hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii) EUR 1,300 (one thousand three hundred euros), plus any tax that may be chargeable, to the applicant, in respect of costs and expenses, of which EUR 1,000 (one thousand euros) to be transferred directly to the lawyer’s account;

(b)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

4.      Dismisses the remainder of the applicant’s claim for just satisfaction.

Done in English, and notified in writing on 30 November 2021, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

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   Hasan Bakırcı                                                                      Carlo Ranzoni
Deputy Registrar                                                                       President