The Exception Of Unconstitutionality Of Article 10 Para. (4) Of Law No. 151 Of 30 July 2015 On The Government Agent (Access To Information) (Notification No. 29G / 2016)

Original Language Title: privind excepţia de neconstituţionalitate a articolului 10 alin. (4) din Legea nr. 151 din 30 iulie 2015 cu privire la Agentul guvernamental (accesul la informație) (Sesizarea nr. 29g/2016)

Subscribe to a Global-Regulation Premium Membership Today!

Key Benefits:

Subscribe Now for only USD$20 per month, or Get a Day Pass for only USD$4.99.
the exception of unconstitutionality of Article 10 para. (4)
of Law. 151 of 30 July 2015 on Agent
Government (Access to Information) (Notification no. 29g / 2016)


Posted: 07/08/2016
in the Official Gazette

Nr. 193-203
Article No: 57
Effective Date: 18/05/2016

On behalf of the Republic
Constitutional Court, sitting in composition:
Mr. Alexandru Tanase, President, Mr. Aurel BĂIEŞU

Mr Igor DOLEA, Mr. Tudor
Panţiru,
Mr. Victor POPA, judges, Sorina Munteanu
with Ms Registrar,
Considering the complaint filed on March 24, 2016 and registered on the same date
,
examining the notification referred to in plenary publish | || Given the documents in the file,
deliberated in closed session
Delivers the following judgment: PROCEDURE

1. The case originated in the objection of unconstitutionality of Article 10 para. (4) of Law no. 151 of 30 July 2015 on the Government Agent, raised by Mr Vitalie Zama, the public association "Lawyers for Human Rights", in case no. 2-674 / 16, before the Court Buiucani mun. Chişinău.
2. The referral was submitted to the Constitutional Court on 24 March 2016 by Mr Ciprian Valach, judge of the District Court Buiucani mun. Chişinău, under Article 135 para. (1) a) and g) of the Constitution, as interpreted by the Constitutional Court Decision no. 2 of 9 February 2016 and the Regulation on the procedure for examining complaints lodged with the Constitutional Court.
March. The author claims that the objection of unconstitutionality of Article 10 para. (4) of Law no. 151 of 30 July 2015 on the Government Agent contravene the provisions of Articles 1 para. (3) 4 par. (2), paragraph 34. (1) and (2) and 54 par. (2) of the Constitution and Article 10 of the European Convention on Human Rights and Fundamental Freedoms (hereinafter - the European Convention).
4. By the Constitutional Court decision of April 4, 2016 notification was admissible, without prejudging the merits.
May. In examining the notification, the Constitutional Court requested the opinion of Parliament, the President of Moldova and the Government.
June. Public plenary of the Court, the notification was supported by Mr. Vitalie Zama, author of the objection of unconstitutionality. Parliament was represented by Mr Sergiu Buffalo, Head of Division in the Directorate General of Legal Parliament Secretariat. The government was represented by Mr Eduard Serbenco, deputy minister of justice.

CIRCUMSTANCES main proceedings 7. On 13 August 2015, the NGO "Lawyers for Human Rights" requested the Ministry of Justice providing information on the identity of persons who have handled cases nationally in a number of cases examined by the European Court of Human Rights (hereinafter - " European Court ").
August. On 9 September 2015 the Ministry of Justice rejected the request of the public association, citing Article 10 para. (4) of Law no. 151 of 30 July 2015 on the Government Agent, which states that the provisions of Law no. 982-XIV of 11 May 2000 regarding access to information shall not apply to correspondence with the European Court of Government Agent and other authorities, as well as material from the files that are in procedure Government Agent.
September. On October 2, 2015, disagreeing with the response, NGO "Lawyers for Human Rights" filed in domestic court mun. Chişinău, for a lawsuit against the Ministry of Justice, requesting the violation of the right of access to information and order providing the requested information.
10. In the hearing of 18 January 2016, the Public Association "Lawyers for Human Rights" of the exception of unconstitutionality of Article 10 para. (4) of the Law on the Government Agent, citing that limited access to information provided by that rule contravenes the Constitution and international treaties on human rights.
11. By the end of 21 March 2016 the court ordered the lifting of the objection of unconstitutionality and transmission of referral to the Constitutional Court for resolution.
RELEVANT LAWS

12. The relevant provisions of the Moldovan Constitution adopted on 29 July 1994 (republished in the Official Gazette, 2016, no. 78, art. 140), are:
Article 1Statul Moldova


"[...] (3) The Republic of Moldova is a democratic law, where human dignity, rights and freedoms, free development of human personality, justice and political pluralism represent supreme values ​​and are guaranteed." || | Article 4Drepturile and freedoms


"(1) Constitutional provisions on the rights and freedoms are interpreted and applied in accordance with the Universal Declaration of Human Rights, with the covenants and other treaties to which Moldova is party.
(2) Where any inconsistencies exist between the covenants and treaties on fundamental human rights to which Moldova is a party and its domestic laws, international regulations have priority. "
Article 34 Right to Information


"(1) A person's right to have access to any information of public interest can not be restricted.
(2) public authorities, according to their competence, are obliged to provide correct information to citizens in public affairs and matters of personal interest.
(3) The right to information shall not be prejudicial to the protection of citizens or national security.
(4) The public media, public or private, are obliged to provide correct information to the public.
(5) The public media are not subject to censorship. "

Article 54 Restriction of certain rights or freedoms

"(1) In the Republic of Moldova can not adopt laws that would suppress or weaken fundamental rights and freedoms of man and citizen.
(2) The exercise of rights and freedoms can not be subjected to any restrictions other than those prescribed by law and which meet generally accepted principles of international law and are necessary in the interests of national security, territorial integrity, economic welfare, public order, to prevent mass riots and crimes, protecting the rights, freedoms and dignity of others, preventing disclosure of confidential information or guarantee the authority and impartiality of the judiciary.
(3) The provisions of paragraph (2) do not restricting the rights proclaimed in Articles 20 to 24.
(4) The restriction must be proportionate to the situation that caused it and can not touch the existence of the right or freedom. "
13. The relevant provisions of Law no. 982-XIV of 11 May 2000 on Access to Information (OG, 2000, no. 88-90, art. 664) are:

Article 4Principiile state policy on access to official information


"(1) Whoever, under this law, has the right to seek, receive and disseminate official information.
(2) The exercise of rights under paragraph (1) of this article may be subject to restrictions for specific reasons, in accordance with international law, including the protection of national security or privacy of the data [...] "

Article 7Informaţiile official with limited access

"(1) The exercise of the right to information may be subject only to the restrictions defined by an organic law and corresponding needs:
rights and reputation of another person;
[...]
C) personal information, the disclosure of which is considered interference in private life, protected by the law on the protection of personal data;
[...]
(4) There will be no restrictions on freedom of information unless the information provider can demonstrate that the restriction is regulated by organic law and necessary in a democratic society for the protection of rights and legitimate interests of persons or the protection of national security and that damage to these rights and interests should be greater than the public interest in knowing the information.
[...] "

Article 8Accesul the personal information

"(1) Personal information is part of official information with limited accessibility and consists of data related to an identified or identifiable natural person, the disclosure of which would constitute a violation of privacy, intimate and family.
(2) Access to personal information shall be in accordance with the legislation on the protection of personal data. "

14. The relevant provisions of Law no. 133 of 8 July 2011 on the protection of personal data (OJ 2011, no. 170-175, art. 492) are:

Article 29Confidenţialitatea personal data

"(1) Operators and third parties who have access to personal data are obliged to ensure the confidentiality of data, unless:
processing relates to data released voluntarily and expressly by data subject personal;
Personal data have been depersonalised. [...] "

Article 31Depersonalizarea personal data

"(1) For statistical purposes, historical, scientific, sociological, medical, legal documentation, operator depersonalize personal data by withdrawing from the part that permits identification of the individual, transforming them into anonymous data, which can not be associated with an identified or identifiable person. [...] "
15. The relevant provisions of Law no. 151 of 30 July 2015 on the Government Agent (MO, 2015, no. 224-233, art.455) are:

Article 10Procedura litigation before the European Court

"(1) After an official notification received by the European Court on an application Individual, Government Agent Calls upon the material and comments on the facts and law and explained the risks and prospects whilst case. The authorities, whatever their status, are obliged to submit the required information and documents concerning proceedings before them, whatever stage they are in, the terms and conditions established by the Government Agent.
(2) If the requested materials and comments are attributed to state secrets in the category of information with limited access often contain personal data, they will be forwarded to the government under the terms established by law. (3) Comments submitted Agent governmental authorities may only be used in proceedings before the Court. (4) The provisions of Law No 982-XIV of 11 May 2000 regarding access to information shall not apply to correspondence with the European Court of Government Agent and other authorities, as well as material from the files that are in procedure Government Agent. "
16 . The relevant provisions of the International Covenant on Civil and Political Rights (adopted by the UN General Assembly on 16 December 1966 and ratified by Moldova by the Parliament No.217-XII of 28 July 1990) are:
Article 19


"1. Nobody should have to suffer because of his views.
2. Everyone has the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, in oral, written, printed or art, or through any other media of his choice.
March. Exercise rights provided for in paragraph 2 of this article carries special duties and responsibilities. Consequently, it may be subject to certain restrictions, but these shall only expressly by law and are necessary: ​​
a) For respect of the rights or reputations of others;
B) securităţiii national defense, public order, health or morals. "
17. The relevant provisions of the European Convention on Human Rights and Fundamental Freedoms, as amended by the Additional Protocols (signed at Rome on 4 November 1950 and ratified by the Parliament of Moldova no. 1298-XIII of 24 July 1997) are: || |
Article 8 right to respect for private and family life

"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 it is required by law and constitute a democratic society, a necessary measure to national security, public safety or economic well-being of the country, prevention of disorder facts criminal protection of health or morals, rights and freedoms of others. "
Article 10Libertatea expression



"1. Everyone has the right to freedom of expression. This right includes freedom of opinion and freedom to receive and impart information and ideas without interference by public authority and regardless of frontiers. This article shall not prevent States from requiring the licensing of broadcasting, television or cinema to authorization.
2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law in a democratic society, are necessary for national security, territorial integrity or public safety, prevention of disorder or crime, for the protection health, morals, reputation or rights of others, for preventing the disclosure of confidential information or for maintaining the authority and impartiality of the judiciary. "

tHE LAW 18. From the content of the notification, the Court observes that it essentially aims to limit access to certain categories of information held by the Government Agent in the context of the Government's representation to the European Court.
19. Thus, the notification relates to a range of factors related constitutional principles such as the right to information, proportionality restrict the right to information and right to privacy.
A.
ADMISSIBILITY 20. By decision of 4 April 2016, the Court examined the admissibility following conditions are met:
(1) Subject plea falls into the category of documents contained in Article 135 para. (1) a)
21 of the Constitution. Under Article 135 para. (1) a) of the Constitution, the constitutionality of laws, namely the Law on the Government Agent, the competence of the Constitutional Court.
(2) exception is raised by a party or its representative, or indicate that it is raised by the court of its own motion
22. Being raised by Mr. Vitalie Zama, Counsel to file no. 2-674 / 16 which is pending before the Court Buiucani mun. Chişinău, notification on the objection of unconstitutionality formulated by the legally authorized topic.
(3) The provisions challenged to be applied to solving the case
23. The Court held that the power to handle exceptions of unconstitutionality, which was vested by Article 135 para. (1) g) of the Constitution requires establishing the correlation between the laws and the Constitution, taking into account the principle of the primacy and relevance of its contested provisions for resolution of the dispute in the courts.
24. The Court notes that the object of the objection of unconstitutionality is the provisions of Article 10 paragraph. (4) of Law no. 151 of 30 July 2015 on the Government Agent.
25. Court accepts the arguments of the author exception of unconstitutionality, that the contested provisions to be applied to solving the case because under their empire were born legal relations which remain in effect and are crucial to deciding on providing the requested information.
(4) There is an earlier judgment of the Court covering
26 contested provisions. The Court notes that the contested provisions were not previously subject to constitutional control.
27. Following its previous case, the Court will address the constitutionality of the contested provisions, relative to the actual circumstances of the dispute mainly through constitutional norms invoked by the author of the objection, taking into account the principles enshrined in the Constitution and law, and stated in European Court.
28. The Court reiterates that the Resolution no. 55 of 14 October 1999 concerning the interpretation of certain provisions of Article 4 of the Constitution stated that "this provision carries legal consequences, assuming first that law enforcement bodies, including the Constitutional Court [...] shall be entitled to apply during the examination of actual cases international law [...], with the event of a conflict, the provisions of international priority. "

29. In the same vein, in Case no. 10 of 16 April 2010 to review the judgment of the Constitutional Court no. 16 of 28 May 1998 "On the interpretation of art. 20 of the Constitution "in the wording of Resolution no. 39 of 9 July 2001, the Constitutional Court stated that "international legal practice [...] is mandatory for Moldova, as a State party to the Convention for the Protection of Human Rights and Fundamental Freedoms".
30. The Court therefore considers that the notification regarding the exception of unconstitutionality can not be dismissed as inadmissible and there is no other reason to stop the process, in accordance with Article 60 of the Constitutional Jurisdiction Code.
31. The Court notes that the author of the objection of unconstitutionality claimed that the contested provisions violate Articles 1 para. (3) 4 par. (2), paragraph 34. (1) and (2) and 54 par. (2) of the Constitution.
32. As regards the violation of Articles 1 and 4 of the Constitution, the Court notes that they behave generic and is imperative general-mandatory underlying any regulation or constitute separate and individual landmarks.
33. However, the Court reiterates that the constitutional rules contained in Article 54 does not have an independent meaning and must be applied by reference to a fundamental right guaranteed by the Constitution.
34. Thus, to elucidate the issues addressed in the complaint, the Court will operate with Article 34 taken together with Article 54 of the Constitution, the reasons given in its case, and the European Court.
B. MERITS OF THE CASE
alleged violation of Article 34 taken together with Article 54 of the Constitution
35. The author argues that the plea of ​​unconstitutionality art. 10 para. (4) of Law no.151 of July 30, 2015 violates Article 34 para. (1) and (2) of the Constitution, which provides that:
"(1) A person's right to have access to any information of public interest can not be restricted.
(2) public authorities, according to their competence, are obliged to provide correct information to citizens in public affairs and matters of personal interest. [...] "
36. Similarly, the author of the objection claims that the contested rule contravenes Article 54 para. (2) of the Constitution, which states:
"(2) The exercise of rights and freedoms can not be subjected to any restrictions other than those prescribed by law and which meet generally accepted principles of international law and are necessary in the interests of national security, territorial integrity , economic welfare, public order, to prevent mass riots and crimes, protecting the rights, freedoms and dignity of others, preventing disclosure of confidential information or guarantee the authority and impartiality of justice. "
1. Arguments author exception erratic 37-tuţionalitate
. The author argues that the plea of ​​unconstitutionality of the provisions under review constitutionality unreasonably limit access to correspondence and case file held by the Government Agent.
38. In support of his complaint, the author mentions that the plea documents held by the Government Agent contain public information that is not confidential and does not constitute a state secret. Thus, access to this information can not be restricted, as required by Article 34 para. (1) and (2) of the Constitution.
39. The author also considers the plea that restricting the right to information under Article 10 para. (4) of Law no.151 of July 30, 2015 does not pursue a legitimate aim and is necessary in a democratic society, contrary to the requirements specified in Article 54 of the Constitution and Article 10 of the European Convention.
2. Arguments authorities
40. In his opinion, the President of Moldova said that the right to information is not absolute and therefore free access to information to be restricted if prejudicial to other rights guaranteed by the Constitution. However, the Government Agent in correspondence with the European Court and other authorities, as well as materials from the files that are in procedure, using information that includes personal and confidential data.

41. According to President of Moldova, restricting the right to information by the disputed rule aims to protect legitimate interests such as respect for other people's reputation, being necessary in a democratic society.
42. According to the Government, challenged the norm of Article 10 of Law no.151 of 30 July 2015 include the contentious procedure before the European Court and the materials and files that are in Government Agent procedure may not be offered to persons other than the parties to file as they relate to the protection of personal data.
43. The Government also argued that there are two competing interests, namely freedom of expression and privacy, which is why national authorities have a broad discretion regarding how to protect those rights. The government said that supply material and relevant documents would expose the state to a possible violation of the Convention, where people affected would subsequently filed a complaint with the European Court of disclosure of personal data. In conclusion, the Government argued the constitutionality of the contested law.
44. In his opinion, Parliament stated that the government agency is mandated to require public authorities materials on the facts and law in cases in procedure, respecting the confidentiality identity of the complainants in the cases decided by the European Court, ensuring data protection personal and confidential nature of the procedures and information in a friendly settlement under Regulation of the European Court. Parliament argues that restricting access to correspondence Government Agent and the materials from the files in the case fall within the state's obligation to guarantee everyone the right to privacy, as enshrined in art. 24 of the Constitution. Moreover, in accordance with art. 16 of the Constitution, respect and protect the human person is the foremost duty of the state.
45. Parliament concluded that the contested rule provides for a restriction of the right to information in accordance with Art. 54 para. (2) of the Constitution, as well as those of art. 10 para. (2) of the Convention is justified by the need to prevent disclosure of confidential information, guaranteeing the authority and impartiality of the judiciary, protection of rights, freedoms and dignity of other persons.
March.
Court's discretion 3.1. General principles
46. The right to information is a fundamental human right, as guaranteed by Article. 34 of the Constitution. (1) the constitutional article states that: "A person's right to have access to any information of public interest can not be restricted".
47. This law requires public authorities to provide correct information to citizens in public affairs and matters of personal interest. The right to information can not be assured only by an appropriate level of transparency of public authorities.
48. The Court reiterates that any authority and / or public institution is obliged to provide the information requested, as long as there is a legitimate reason to refuse these requests (see Constitutional Court Decision No. 19 of 22 June 2015). However, Article 34 para. (3) of the Constitution provides that the right to information shall not be prejudicial to the protection of citizens.
49. The right to information is a right multidimensional. It serves several categories of individual and group interests and represents an initial condition for public participation in the democratic process. Access to information has important consequences for the proper functioning of a democratic regime.
50. The right of access to information is an important tool for quantifying abuses, errors of administration, corruption and the implementation of important social and economic rights.

51. The Court has previously held that the right to information may be subject to certain exceptions, allowing refraining from presenting certain categories of information. These exceptions include the protection of national security, international relations, privacy of individuals, commercial confidentiality, public policy and the implementation of the law, and the refusal to submit information received in confidence, or those resulting from discussions internal. In order to be invoked exceptions must justify the existence of injury to the public interest where the information should be disclosed (see Constitutional Court Decision No. 19 of 22 June 2015).
52. In its case, the European Court held that freedom to receive information referred to in paragraph 2 of Article 10 of the Convention, concerns above all access to general sources of information and is primarily aimed at prohibition of a state to prevent a person from receiving information that others wish or may be willing to pay (Leander v. Sweden, judgment of 26 March 1987 § 74).
53. Meanwhile, the European Court stressed that state authorities, in addition to the obligation not to interfere arbitrarily in the privacy of a person, is to undertake actions that involve the adoption of measures to ensure respect for private life even in the sphere of relations between individuals ( see Armonienė v. Lithuania, no. 36919/02, § 36, 25 November 2008; Söderman v. Sweden [GC], no. 5786/08, § 78, November 12, 2013).
54. The concept of 'private life' is a broad term that can not be defined exhaustively and which include physical and mental integrity of a person and, therefore, may include several aspects of a person's identity, such as, for example, identifying gender, sexual orientation, as well as elements relating to the right to reputation (S. and Marper v. the United Kingdom [GC], no. 30562/04 and no. 30566/04, § 66, December 4, 2008). That period includes the personal information for which there is a legitimate expectation that they would not be published without the consent of those to which they relate (Flinkkilä and Others v. Finland, no. 25576/04, § 75, April 6, 2010, and Saaristo and others v. Finland, no. 184/06, § 61, October 12, 2010).
55. Moreover, the European Court noted that although the acceptable limits of criticism of public officials against persons are wider than for private individuals, to judges degree of tolerance is lower (Nikula v. Finland, no. 31611/96 [GC ] March 21, 2002). Or, criticism without plausible grounds would harm the image of justice in society and trust that this will benefit the fulfillment of justice.
56. Also, the European Court observed that "it is difficult to infer from the Convention a general right of access to administrative data and documents [...]" (see Sdružení Jihoceska Matky v. Czech Republic, decision of 10 July 2006) .
57. As regards access to official information, relevant Recommendation of the Committee of Ministers of the Council of Europe no. 19 on access to information held by public authorities, adopted on 25 November 1981 containing the following provisions:
"[...] Everyone [...] is entitled to receive, upon request, information held by public authorities, other than legislative bodies and judicial authorities.
[...] These principles may be subject only to such limitations and restrictions which are necessary in a democratic society to protect legitimate public interests (such as national security, public safety, public order, economic welfare of the country, or for crime prevention preventing the disclosure of confidential information) and the protection of privacy and other legitimate individual interests and will take into account, however, the specific interest of a person in obtaining information held by public authorities concerning him personally. [...] "
58. Furthermore, the Committee of Ministers by adopting 3 July 1986 Recommendation no. 1037 data protection and the right to information, reaffirmed the principle that the right of access to official information may be restricted in order to protect privacy and urged member states to identify a mechanism to reconcile the protection of personal data and access to information official.

59. However, the Committee of Ministers Recommendation no. 2 on access to official documents, adopted on 21 February 2002 stated:
"[...] 2. Access to a document may be refused if disclosure of the information contained in the official act that might prejudice one of those interests [...] [privacy and other legitimate interests of individuals], unless there is an overriding public interest.
[...]
2. If a limitation only applies to information contained in an official document, the public authority will still provide access to the rest of the information that it contains. Any omissions should be clearly indicated. However, if the partial version of the document becomes meaningless or confusing, access may be denied. [...] "
3.2. Applying the principles of the present case
60. In the present case, the Court holds that the contested provisions establish that the Law on Access to Information Government Agent shall not apply to correspondence with the European Court and other authorities, as well as material from the files that are in procedure Government Agent.
61. The Court notes that the Law on Access to Information was adopted fully the provisions of art development. 34 of the Constitution, to create an overall regulatory framework conditions of the citizens' right of access to information held by public authorities.
62. At the same time, the Court observes that the rule subject to constitutional review aimed at restricting the right to information protected by Article 34 of the Constitution.
63. As this right is not absolute, consequently, it is worth examining the principle of proportionality in this case, an imperative requirement, need to be respected in cases of limitation on the exercise of fundamental human rights and freedoms provided for by art. 54 para. (2) of the Constitution.
64. Also to be compatible with the constitutional provisions mentioned, such a restriction or interference must be "prescribed by law", pursue one or more legitimate aims listed in paragraph two, and be "necessary in a democratic society "to achieve those goals.
65. Therefore, the Court will make the proportionality test as a default logical method designed to identify whether the allegedly infringed right has suffered a prejudice that exceeds the limits imposed by the Constitution.
66. According to the proportionality test, challenged the restriction set norm must pursue a legitimate aim objectively, be indispensable for achieving that aim and proportionate - to ensure a fair balance between the competing interests.
1) Prescribed by law
67. The Court notes that in order to determine whether the restrictions on the right to information is provided by law, is to ascertain whether the contested rule that provides accessible, clear and predictable.
68. The Court holds that the challenged norm is contained in Law no. 151 on Government Agent was adopted by Parliament on 30 July 2015 and published on 21 August 2015 Official Gazette of the Republic of Moldova no. 224-233, art. 455. Therefore, the restriction is prescribed by law and meets the criterion of accessibility.
69. As provided sufficient precision or predictability, the Court notes that this presupposes the existence of rules of law on the subject of detailed Treaty (Kruslin v. France, judgment of 24 April 1990, § 27).
70. In this context, the Court observes that the rule subject to review constitutionality determine the categories of information held by the Government Agent exempted from the provisions of the Law on Access to Information, namely: (1) correspondence Government Agent to the European Court and other authorities and (2) material from the files that are in procedure government Agent.
2)
71 legitimate aim. All the regulations of Law no. 151 of 30 July 2015, the Court draw the following important issues.

72. Under Article 6 of the law set forth above, in the exercise of its governmental agent has an obligation to act with the utmost diligence to represent the interests of the Republic of Moldova; to respect the confidentiality of procedures and information in cases of amicable and in other cases provided by the European Court Rules; ensure confidentiality of the identity of the applicant in cases decided by the European Court and to ensure the protection of personal data included in the case materials in its possession.
73. Meanwhile, under paragraph (3) of Article 10 of the Law, Government Agent submitted comments authorities may only be used in proceedings before the Court. And (2) thereof provides that where materials and comments requested are attributed to state secrets in the category of information with limited access often contain personal data, they will be forwarded to the government under the terms established by law.
74. In this context, the Court holds that the procedure under Government Agent acts and those related directly to the Government representative to the European Court may contain personal data and / or confidential information. If disclosed, could have affected the applicants' right to privacy, reputation and / or the presumption of innocence other persons appearing in documents in the possession of Government Agent.
75. The Court notes that the restriction contained the norm challenged arising from specific contentious proceedings before the European Court, pursuing a dual purpose, namely (1) protect the interests of the Institution of Government Agent in representing the state before the European Court and, in particular, (2) protection data subjects' rights in cases before the European Court (privacy, presumption of innocence, dignity and reputation of the person, etc.).
76. The Court held that the restriction of access to a particular category of information is applied to safeguard "other right" in particular - to protect the rights, freedoms and dignity of other persons and preventing disclosure of confidential information therefore corresponds to the legitimate aim, referred to in the second paragraph of Article 54 of the Constitution.
3) Necessary in a democratic society
77. Because the restriction imposed by the disputed rule to be necessary in a democratic society, the Court must now determine whether there is a fair balance between the competing interests at stake and whether the interference with the right to information is proportionate to the legitimate aim pursued. In this respect, the Court will weigh, on the one hand, the right to information and, on the other hand, the right to privacy of individuals by disclosing personal data.
78. The Court notes the European Court's position regarding the discretion allowed and principles to be respected when discussed two competing rights protected by the Convention.
79. In its case, the European Court noted that "(...) when you need to resolve a conflict between two rights that benefit from equal protection under the Convention, the Court will appreciate the importance of competing interests. The result of the examination of the case should not, in principle, vary depending on whether the application was lodged with the Court under Article 8 of the Convention (..) or under Article 10 of the Convention (..) because these two deserve rights in principle , equally respect (see Hachette Filipacchi Associés (ICI PARIS) v. France, no. 12268/03, § 41, July 23, 2009; Timciuc v. Romania (dec.), no. 28999/03, § 144 12 October 2010 Mosley v. the United Kingdom, no. 48009/08, § 111, 10 May 2011 Hachette Filipacchi Associés and Couderc and v. France [GC], no. 40454/07, § 91, 10 November 2015) ". Accordingly, the Court concluded that "discretion should, in theory, be the same in both cases (see Von Hannover (no. 2) v. Germany, February 17, 2012, § 106; Axel Springer AG c.Germaniei 17 February 2012 § 87; and Couderc and of Hachette Filipacchi Associés, § 91). "

80. Also, the European Court noted that "in order to fulfill the positive obligation to protect a person's rights under Article 8 of the Convention (...), the state could be induced to restrict to some extent another's rights guaranteed by Article 10 (...) "(see Case Bedat v. Switzerland [GC], no. 56925/08, March 29 2016). When examining the need for the restriction in a democratic society in the interests of "protection of the reputation or rights of others", the European Court verify whether the national authorities have established the right balance in ensuring the protection of two values ​​guaranteed by the Convention, which could be in conflict one another in certain cases, namely freedom of expression as protected by Article 10, on the one hand, and the right to privacy guaranteed by Article 8 of the Convention, on the other hand.
81. Applying the above principles relating to the protection guaranteed two values ​​- the right to information and right to privacy of others, the Court notes the following.
82. Government Agent of specific activities of the institution, the Court finds that certain prerequisites that caused the imposition of restrictions on the right of access to information required by the disputed rule. However, the Court notes that the challenged rule is a rule imposing excessive restrictions blanket the information in possession of government agency and does not allow individualization categories of information to be nonpublic.
83. In this regard, the Court notes that, in addition to Law no. 151 of 30 July 2015 there are a number of laws adopted earlier, which protects the confidentiality of information held by public authorities, including personal data.
84. Thus, Article 8 of the Law on Access to Information established that personal data are part of official information with limited accessibility and represent data relating to an identified or identifiable individual, the disclosure of which would constitute a violation of privacy, intimate and family and access to such information shall be in accordance with the legislation on the protection of personal data.
85. The provisions of the Law on the protection of personal data provide for the confidentiality of special categories of personal data - revealing racial or ethnic origin of the person, their beliefs political, religious or philosophical beliefs, social class, data concerning health or sex life, and those relating to criminal convictions, measures of constraint or contravention sanctions.
86. In this context, the Court notes that due to the special importance that presents information that concerns personal data, the disclosure of which could affect the rights of persons benefit from legal protection increased and prevail on free access to information in cases expressly provided by law.
87. Referring to the Government Agent confidential information in correspondence with public authorities, the Court notes that the authorities secret correspondence is protected by the Law on State Secret no. 245-XVI of 27 November 2008, subject to a special storage conditions.
88. The Court also finds that, in terms of correspondence Government Agent in the context of a friendly settlement of the case, Article 62 § 2 of the Rules of Court provides that the European negotiations to achieve a friendly settlement of a case are confidential and should not influence the observations made by the parties in the contentious proceedings. No written or oral communication and no offer of regulation occurred in these negotiations will not be referred to or relied on in the contentious procedure.
89. However, in respect of the need to restrict access to correspondence Government Agent to the European Court, the Court notes that according to the general rule in Article 40 § 2 of the Convention, access to documents lodged with the Secretariat of the European Court is not limited to the public, unless President of the European Court decides otherwise.

90. Meanwhile, Regulation European Court states that the general rule does not apply to documents submitted amicable settlement of the case, which are not publicly available, and acts in the proceedings of the former European Commission of Human Rights, including pleadings, which are confidential, unless President of the Chamber decides otherwise (pt. 33 and 106 of the Regulations).
91. Furthermore, Regulation European Court states that public access to a document or part of a document may be restricted in the interest of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of private life of parties require, or when, in special circumstances, in so far as is strictly necessary for the President of the Chamber, publicity would prejudice the interests of justice.
92. So, the Court notes the need to consider individual requests for information held by the Government Agent, in a manner similar to that of the European Court, without being entirely exempted automatically and categories of information, as required by Rule challenged the application of the Law access to information.
93. In this context, the Court notes that if the limitation applies only to information held by the Government Agent to not be harmed privacy or other legitimate interests, however, access to the rest of the information it has to be submitted upon request and if the partial version of a document becomes meaningless or confusing, access may be denied, as required by the Committee of Ministers Recommendation no. 2 of 21 February 2002 on access to official documents.
94. For the reasons set out above, taking into account the specific procedure for representing the state before the European Court and the Government Agent obligations derived from this Court finds it necessary to regulate the confidentiality of certain categories of information provided by Law no. 151 of 30 July 2015 without establishing a blanket ban.
95. In this context, the Court will issue an address to Parliament in order to identify the categories of information that would be exempted from the provisions of the Law on Access to Information, depending on the specific activity of the Government Agent in exercising his duties, taking into account the reasoning set.
96. In conclusion, the Court holds that the challenged norm does not ensure a fair balance between the right of access to information and rights of other people and therefore it is not necessary in a democratic society.
97. For these reasons, the Court finds that the provisions of art. 10 para. (4) of the Law on Government Agent no. 151 of July 30, 2015 transgresses the principle of proportionality, the measure provided is excessive in relation to the objective to be achieved and this is contrary to Article 34 taken together with Article 54 of the Constitution.
For these reasons, pursuant to Articles 135 paragraph. (1) a) and g) and 140 of the Constitution, 26 of the Law on Constitutional Court, 6, 61, 62 lit. a) and e), and 68 of the Code of Constitutional Court Constitutional

DECIDES:

1. Exception of unconstitutionality is admitted by Mr. Vitalie Zama, the Public Association "Lawyers for Human Rights", in case no. 2-674 / 16 pending before the domestic court mun. Chişinău.
2. Declare unconstitutional Article 10 (4) of Law no. 151 of 30 July 2015 on the Government Agent.
March. This decision is final, can not be subject to any appeal, shall enter into force upon adoption and shall be published in the Official Gazette of the Republic of Moldova.

Related Laws