Disclosure of sensitive personal data on adoption violates privacy. The legislative vacuum for lawsuits against judges violated the right to an effective remedy.
Χ. and others v. Russia 14.01.2020 (no. 78042/16 και 66158/14)
The first applicant, a victim of rape, complained of malfunctioning of the justice system, as the latter, in the process of investigating her case, disclosed her personal information in letters she sent to medical centers. The applicant applied for damages, but her action was dismissed because Russian law does not provide for a lawsuit against a judge if he has not been convicted of a harmful act.
The second and third applicants also sought compensation for the malfunction of justice because, in their adoption case, as a member of the Court of Justice had published information of the parents and the adopted child. They also complained of privacy violations.
The Constitutional Court dismissed the applicants’ actions for damages on the ground that there is no statute of limitations in Russian law.
The Court noted that the decisions of the domestic courts declaring the three applicants’ claims inadmissible were neither arbitrary nor manifestly illogical. The attitude adopted by those courts has consistently and clearly established that, in the absence of a substantive right, they were not competent to rule on the dispute. The right to a fair trial was therefore not infringed.
However, the ECtHR held that since Russian law did not provide for effective remedies to indemnify the citizen for damage resulting from unlawful action or negligence of the judge, since such compensation depends solely on the determination of the individual responsibility of the judge, the right of infringement has been infringed. Violation of Article 13.
It also reiterated that the concept of “privacy” is broad and embraces many aspects, for which it considered that the disclosure of child adoption information on the Court’s website was in breach of national law and constituted a violation of Article 8 of the Convention.
Article 6 § 1
The case concerned two applications relating to allegations of malfunctioning of the justice system.
Application no. 66158/14 was lodged by M.B., a Russian national who was born in 1978 and lives in
Russia. On an unspecified date M.B. had complained of having been raped and requested the court to gather information on the state of health of the alleged rapist (T.) in the framework of an action
for damages. The relevant judge sent letters to a sickness insurance fund, to a hygiene and
epidemiology centre and to a senior police officer requesting information on T. In his
correspondence the judge stated that his request concerned facts relating to an alleged rape and the
applicant’s contamination with specific diseases, without concealing her identity.
In 2013 the applicant brought an action for damages claiming compensation, inter alia, for the
disclosure of her personal data. However, the court declined jurisdiction for the case, noting that a
judge could not be the subject of a claim for damages, even if he or she had been removed from
office, for having expressed an opinion linked to the exercise of his or her duties or having given a
decision, unless the judge had been found guilty of criminal wrongdoing. The court noted that in a
judgment delivered in 2001 the Constitutional Court had held that judges could in fact be liable and
that claims for compensation against them could be upheld if the judge had been found liable , not
only under a criminal decision but also under a civil one. Nevertheless, the court found that despite
the Constitutional Court’s recommendation, the legislature had never adopted statutes governing
the arrangements and conditions for the payment of such compensation and the courts’
competences in that sphere. Consequently, the applicant’s action was declared inadmissible. That
judgment was upheld on appeal.
Application no. 78042/16 was lodged by X and Y, two Russian nationals who, having adopted two
children, had had the latter’s names changed in order to preserve their anonymity. Furthermore,
when the children changed nursery schools, the head teacher of the second school disclosed the
confidential nature of their adoption to her staff. Consequently, X and Y claimed damages, which
they were awarded in November 2014. However, the Regional Court published the judgment on its
site, without concealing the applicants’ identities.
In April 2016 the judgment was removed from all public sites, and the President of the Regional
Court issued two successive apologies to the applicants. The latter nevertheless lodged two actions,
claiming to have sustained damage: a disciplinary action against the President of the Regional Court
before the High Council of the Judiciary, and an action seeking compensation for the non-pecuniary
damage which they claimed to have suffered. Subsequently, the High Council of the Judiciary
declined jurisdiction for reviewing the judicial proceedings, on the grounds that no disciplinary fault
had been committed giving rise to a penalty prescribed by law. The District Court declared the action
for damages inadmissible, observing that compensation could be awarded for damage caused by a
judge where his or her guilt had been established by criminal judgment, and that it could not
examine the applicants’ action.
Finally, in both applications, the actions for damages lodged by the three applicants (M.B., X and Y)
against the judges concerned were not examined on the merits by the domestic courts.
THE DECISION OF THE COURT…
Article 6 § 1 (right of access to a tribunal) – complaint relied on in both applications (nos.
78042/16 and 66158/14)
The Court reiterated that for Article 6 § 1 to be applicable under its “civil” limb, there must be a
dispute (contestation) over a “right” that can be said, at least on arguable grounds, to be recognised
under domestic law, whether or not that right is secured under the Convention.
In the present case the Court noted that Article 1070 of the Civil Code determined State liability for
any malfunctioning of the justice system. The first paragraph of that Article set out an exhaustive list
of situations in which compensation could be awarded for damage caused by judicial decisions,
irrespective of any fault on the judge’s part. The second paragraph provided that any damage caused
in the framework of the administration of justice gave rise to compensation provided that the
judge’s guilt had been established under a final criminal conviction.
In 2001 the Russian Constitutional Court, while upholding the constitutionality of Article 1070 of the
Civil Code, ruled that the State’s liability could be engaged for judicial decisions or inaction on the
part of a judge, even where the latter had not been the subject of a final criminal conviction. Thus
noting a deficiency in the law, the Constitutional Court stated that the Russian Parliament should
legislate in order to lay down the conditions and procedure for the State to pay compensation for
damage arising out of unlawful action or inaction on the part of a court or judge and to determine
which courts have jurisdiction to adjudicate cases concerning compensation for such damage.
In 2010 the lower house of the Russian Parliament, the State Duma, enacted Federal Law No. 68-FZ
implementing the Constitutional Court judgment in question as regards litigants’ right to
compensation for violations of their right to have their cases determined within a reasonable time
and to secure the execution of enforceable judicial decisions within a reasonable period. In the other
hand, neither that law nor any other legislation enshrined individuals’ substantive right to
compensation for damage caused by a judicial act of a procedural nature other than damage caused
by unreasonable length of proceedings.
In the instant case the Russian courts had noted that despite the Constitutional Court’s
recommendation, the Russian legislature had failed to make good the deficiency in question, in
terms of both introducing a substantive right to compensation for judicial malfunctions and the
arrangements and procedure for lodging an action to assert such right. In that connection, the Court
noted that the decisions given by the domestic courts declaring the three applicants’ claims
inadmissible were neither arbitrary nor manifestly unreasonable. Moreover, the stance taken by
those courts had found, firmly and unequivocally, that in the absence of a relevant substantive right
they lacked jurisdiction to adjudicate the dispute.
Consequently, the Court considered that the applicants had had no right that could be said, at least
on arguable grounds, to be recognised under domestic law. It also pointed out that to find otherwise would entail creating, by way of interpretation of Article 6 § 1, a substantive right lacking any legal basis in domestic law. Accordingly, Article 6 § 1 did not apply under its civil limb in the present case
and the complaint under that provision was inadmissible in respect of both applications.
Article 8 (right to respect for private and family life) – complaint relied on by X and Y (no. 78042/16)
The Court reiterated that the concept of “private life” was a broad term not susceptible to
exhaustive definition, which covered the individual’s physical and mental integrity and could
therefore embrace multiple aspects of his or her identity. It also covered personal information which
individuals could legitimately expect not to be published without their consent.
In the present case, the Court considered that the disclosure of information concerning X and Y’s
adoption of their children had amounted to an interference with their private life. It noted in that
regard that the information on the Regional Court’s website had been published in breach of
domestic legislation providing that judicial decisions given in family-law cases, including adoption
cases, should not be published on the Internet. Consequently, the Court found that there had been
a violation of Article 8.
Article 13 (right to an effective remedy), read in conjunction with Article 8 – complaint relied
on by applicants X and Y (no. 78042/16)
The Court noted that X and Y had attempted, unsuccessfully, to apply to the High Council of the
Judiciary, which had declined competence to review the judicial proceedings and the functioning of
the court registries. According to the Government, the applicants ought to have brought criminal
proceedings against the judge so that they could subsequently have brought civil proceedings under
Article 1070 of the Civil Code in order to secure possible compensation. However, the Government
pointed out that the impugned act had been committed by a member of the court registry rather
than by a judge. In that connection, the Court noted that the provision cited by the Government
(Article 1070 of the Civil Code) made the engagement of the State’s liability dependent on a criminal
act committed by a judge and not by a member of the registry. Furthermore, making the
engagement of State liability for malfunctioning of the justice system, in a manner contrary to
fundamental rights, dependent on a criminal act by a judge meant making that right dependent on a
factor which was beyond the control of the victims of that malfunctioning. Indeed, such a
malfunctioning could be the result of an unintentional act which was not subject to a criminal
penalty or of an action or inaction not attributable to any specific judge, and so on. The Court
referred in that regard to the reasoning set out by the Russian Constitutional Court in its 2001
judgment, concluding that the constitutional right to State compensation for damage arising out of a
judge’s unlawful action or inaction should not be made dependent on establishing individual fault on
his or her part. Consequently, the Court considered that the remedy was not effective and found a
violation of Article 13 read in conjunction with Article 8 of the Convention, in respect of X and Y.
Just satisfaction (Article 41)
The Court held that Russia was to pay X and Y 2,600 euros (EUR) in respect of non-pecuniary damage
and EUR 1,460 in respect of costs and expenses.