443 Esther Salamanca Aguado Respect for privacy and personal data protection... protection against arbitrariness and accordingly indicate with sufficient clarity the scope of discretion conferred on the competent authorities and the manner of its exercise.65 The level of precision required of domestic legislation depends to a considerable degree on the content of the instrument in question, the field it is designed to cover and the number and status of those to whom it is addressed.66 The ECtHR has had the opportunity to apply these general principles to the Romanian law which authorises the Romanian Intelligence Service (SRI) to gather, store and make use of information affecting national security. In the Rotaru v. Romania case, the ECtHR had doubts as to the relevance to national security of the information held on the applicant. Nevertheless, it reiterated that it is primarily for the national authorities, notably the courts, to interpret and apply domestic law and noted that in its judgment of 25 November 1997 the Bucharest Court of Appeal confirmed that it was lawful for the RIS to hold this information as depositary of the archives of the former security services. That being so, the ECtHR concluded that “the storing of information about the applicant’s private life had a basis in Romanian law”.67 As to the accessibility of the law, the ECtHR regards that requirement as having been satisfied, seeing that the law in question was published in Romania’s Official Gazette on 3 March 1992.68 The “quality” of the legal rules relied on in this case must therefore be scrutinised by the Court, with a view, in particular, to ascertaining whether domestic law laid down with sufficient precision the circumstances in which the RIS could store and make use of information relating to the applicant’s private life. The Court noted in this connection that “the aforesaid Law does not define the kind of information that may be recorded, the categories of people against whom surveillance measures such as gathering and keeping information may be taken, the circumstances in which such measures may be taken or the procedure to be followed. Similarly, the Law does not lay down limits on the age of information held or the length of time for which it may be kept”.69 With respect to the existence of adequate and effective safeguards against abuse, the Court regards that in order for systems of secret surveillance to be compatible with Article 8 of the Convention: “they must contain safeguards established by law which 65 Case of S. and Marper vs. United Kingdom, paragraph 95. See also the Case of Malone v. United Kingdom, paragraphs 66-68; Case of Rotaru v. Romania. Judgment of 4 May 2000, paragraph 55; Case of Amann v. Switzerland. Judgment of 16 February 2000, paragraph 56. 66 Case of S. and Marper vs. United Kingdom. Judgment of 4 December 2008, paragraph 96. See also the Case of Hassany Tchaouch v. Bulgaria, paragraph 84. 67 Case of Rotaru v. Romania, paragraph 53. 68 Ibid., paragraph 54. 69 Case of Rotaru v. Romania, paragraph 56 – 58.
REVISTA IEEE 4
To see the actual publication please follow the link above