Taking Rights Seriously: Data protection and Article 8 in Moldova

Taking Rights Seriously: Data protection and Article 8 in Moldova

I was very pleased to assist as an “expert” for the Council of Europe in Moldova this month in a project designed “to enhance the effectiveness of the European Convention on Human Rights (ECHR) at national level, in line with the Brighton Declaration”. Although many human rights experts were concerned about the UK government’s intentions when it Chaired the Council of Europe two years ago and the content of some of the leaked drafts of what was to become the Brighton Declaration there is, in fact, a great deal of good work being done following that declaration to promote human rights across Europe.

Creating better systems for protecting human rights at a national level is obviously sensible because it is likely to resolve issues more quickly, prevent violations in the first place and stemming the flow of cases to the European Court of Human Rights (though the Court seems to continue to be doing a brilliant job at reducing the numbers, applications pending reduced again from January (99,990) to the end of August this year (89,550), ECtHR, Statistics 1/1 – 31/8/2014). It is obviously refreshing to be working with lawyers and others outside of the UK who are clearly determined to make a difference and to do their level best to protect the rights in the Convention.

The project that I was a very small part of was aimed “at facilitating the implementation of national measures to prevent or redress violations of human rights and therefore will contribute to the sustainability of the European Court of Human Rights (ECtHR). In particular, the project will contribute to ensuring:

– that remedies available to persons with arguable complaints of violation of the ECHR are effective;
– that Moldovan domestic procedures to conduct investigations and handle cases of serious human rights violations comply with the procedural obligations under the ECHR;
– that draft legislation and administrative practice are verified as to their compatibility with the ECHR;
– that the status, organisation, operation and infrastructure of public services belonging to the criminal justice sector are compliant with European standards and good practices (Council of Europe, Human Rights Trust Fund).

I guess we could do with some of this back in the UK.

Moldova was the ninth country generating the highest amount of applications before the ECtHR, despite its much smaller size (“Execution of judgements of the European Court of Human Rights by the Republic of Moldova, 1997-2012”, by the Legal Resources Centre from Moldova). Compared to other countries with a high number of ECtHR judgments, where most of the judgments refer to one or two systemic problems, the Moldovan judgments refer to more than 50 types of violations of the ECHR. The most frequent violations found by the ECtHR were related to: Art. 6 (right to a fair trial); Art. 3 (prohibition of torture); Art. 5 (right to liberty and security); and Art. 13 (right to an effective remedy).

In 2013 the ECtHR dealt with 3,162 applications and delivered 19 judgments from Moldova, 18 of which found at least one violation (ECtHR Press country file: Moldova, January 2014).

My workshop was held for the staff of the Constitutional Court of the Republic of Moldova in Chisinau and focused on the protection of personal data through the right to respect for private and family life (Article 8).

It is always great to get the opportunity to discuss the nature of the Convention rights with others who have to use them in practice and to try to work together to deal with the challenges that protecting human rights creates for all of us. Our workshop discussed the typology of rights in the Convention (absolute, qualified and limited) and then focused on a thorough analysis of the qualified rights, in particular the concepts of:
• engagement of Article 8 itself;
• actual interference;
• prescribed by law:
o accessible,
o foreseeable,
o character and
o quality of the law;
• legitimate aim;
• proportionality:
o in general,
o specifically targeted,
o logical and causal connection; and
• the margin of appreciation.

The Council of Europe and the Court now have some much incredibly good material available on their websites. The COE’s Handbook No 1, “A guide to the implementation of Article 8 of the European Convention of Human Rights”, is particularly great, providing quotes from the key jurisprudence and some excellent case examples. This was supplemented by the European Court of Human Rights’ factsheets “Protection of personal data” and “New technologies” for more up to date and specific cases and jurisprudence. In addition, relevant cases against Moldova were considered.

For me it was also helpful to review the Council of Europe’s Data Protection Convention, and in particular the principles therein and how those principles and the Court’s jurisprudence seem to remain in harmony with each other despite the age of the Data Protection Convention (1981). Even in countries not (yet) part of the EU, the EU’s key principles of data protection law is crucial to consider, at least to the extent that that they followed the principles of the COE Conventions (The Fundamental Rights Agency, Council of Europe and European Court of Human Rights’ “Handbook on Data Protection”, 2014, is incredibly helpful).

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