European Court of Human Rights

 

SECOND SECTION

CASE OF MAZUR v. THE REPUBLIC OF MOLDOVA

(Application no. 26476/14)

 

 

 

 

 

 

JUDGMENT

STRASBOURG

14 February 2023

 

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

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

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

          Jovan Ilievski, President,
          Lorraine Schembri Orland,
          Diana Sârcu, judges,
and Dorothee von Arnim, Deputy Section Registrar,

Having regard to:

the application (no. 26476/14) 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”) on 27 March 2014 by two Moldovan nationals, Mr Ion Mazur (who is also a Romanian national) and Ms Svetlana Mazur, both born in 1982 and living in Chișinău (“the applicants”), who were represented by Ms L. Covganeţ, a lawyer practising in Chișinău;

the decision to give notice of the application to the Moldovan Government (“the Government”), represented by their Agent, Mr O. Rotari;

the parties’ observations;

noting that the Government of Romania did not make use of their right to intervene in the proceedings (under Article 36 § 1 of the Convention);

Having deliberated in private on 24 January 2023,

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

SUBJECT MATTER OF THE CASE

1.  The application concerns, in particular, the applicants’ complaint under Article 8 of the Convention about the compilation and use, by the first applicant’s employer, of data concerning the applicants’ use of their telephones, in a manner or degree beyond that normally foreseeable.

2.  The first applicant worked as a prosecutor for the Prosecutor General’s Office (“the PGO”). The latter concluded a contract with a mobile phone operator and obtained a series of phone numbers, to be distributed by the PGO to its staff. According to the applicants, many of the first applicant’s colleagues received two or more such phone numbers, which were used by their family members. The first applicant obtained two such numbers and allowed his wife to use one of them. He paid all the costs for the subscription; the calls between the two numbers were free.

3.  In 2011 the PGO dismissed the first applicant, but he was later reinstated by the courts. A few months after his reinstatement a wide-ranging assessment of various aspects of the first applicant’s work resulted in a report of January 2012, finding various breaches of applicable regulations (unsatisfactory work results, unauthorised use of the internet). One of them was that he talked for many minutes each day with his wife over the phone during working hours, as proved by data obtained from the mobile phone operator concerning the number, destination, time and duration of such phone calls. The first applicant was again dismissed as a result.

THE COURT’S ASSESSMENT

I.         ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION

4.  The applicants complained under Article 8 of the Convention about the authorities’ obtaining and using data concerning the phone calls which they made to each other.

5.  The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention or inadmissible on any other grounds. It must therefore be declared admissible.

6.  The general principles concerning compilation and use of personal data, notably in the context of accessing and recording information about the flow of communications (“metering”, or recording information about the number, duration, time and destination of phone calls, as opposed to intercepting the actual contents of communications), have been summarized in Malone v. the United Kingdom (2 August 1984, § 84, Series A no. 82) and Breyer v. Germany (no. 50001/12, § 75, 30 January 2020; see also Benedik v. Slovenia, no. 62357/14, §§ 103-104, 24 April 2018). The relevant principles for assessing the proportionality of an interference in the context of an employer accessing information concerning private communications by an employee have been further developed in Bărbulescu v. Romania ([GC] no. 61496/08, §§ 113-122, 5 September 2017).

7.  The Court finds that by obtaining metering data of the applicants’ use of their mobile phones, the PGO interfered with their Article 8 rights. It also considers that the interference was “in accordance with the law” (namely Article 73 of the Law on electronic communications (no. 241-XVI)) and pursued the legitimate aim of protecting the rights of the first applicant’s employer. As for the necessity of the interference, and pursuant to the principles set out in Bărbulescu (cited above, § 121), it is apparent that the applicants were not notified in advance of the possibility that the flow of their communications might be monitored and used by the PGO. The Government’s assertion that the first applicant was informed about that orally is not supported by any evidence. Moreover, there were serious consequences of the monitoring for the first applicant - he was dismissed, partly based on the results of the monitoring.

8.  It also appears from Article 73(3) of the Law on electronic communications (no. 241-XVI) that the mobile phone operator was not to include on its detailed bills information for its clients about the latter’s free phone calls. The phone calls between the two applicants were all free. Therefore, the PGO did not simply verify information routinely provided by the mobile phone operator about the first applicant’s phone calls, but specifically asked for and obtained detailed information which would not normally be made available. The domestic courts did not examine, given the context of an attempt to have the first applicant dismissed in the months prior to the monitoring and the extraordinary steps taken to obtain information about his phone calls and its use to dismiss him again, whether the reasons for such monitoring went beyond an employer’s wish to keep its staff at optimal operating efficiency and in fact were retaliatory in nature, specifically targeting the first applicant in order to secure his repeated dismissal (compare Bărbulescu, cited above, § 121(iii)). The compilation and use of the applicants’ personal data was therefore not “necessary in a democratic society”.

9.  There has accordingly been a violation of Article 8 of the Convention.

II.      REMAINING COMPLAINTS

10.  The applicants also raised a complaint under Article 1 of Protocol No. 1 to the Convention concerning the discontinuation of the use of their phones after the first applicant’s dismissal. The Court has examined that part of the application and considers that, in the light of all the material in its possession and in so far as the matters complained of are within its competence, this complaint does not disclose any appearance of a violation of the rights and freedoms enshrined in the Convention or the Protocols thereto.

11.  It follows that this part of the application must be rejected in accordance with Article 35 § 4 of the Convention.

APPLICATION OF ARTICLE 41 OF THE CONVENTION

12.  The applicants claimed a total of 90,000 euros (EUR) in respect of pecuniary damage and a total of EUR 20,000 each in respect of non-pecuniary damage.

13.  The Government considered that the amounts claimed were unsubstantiated and excessive.

14.  The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim. It also considers that, in the specific circumstances of the present case, the finding of a violation constitutes sufficient just satisfaction. It therefore rejects the applicants’ claim for compensation of non-pecuniary damage.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1.      Declares the complaint under Article 8 admissible and the remainder of the application inadmissible;

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

3.      Holds that the finding of a violation constitutes in itself sufficient just satisfaction for the non-pecuniary damage sustained by the applicants;

4.      Dismisses the remainder of the applicants’ claim for just satisfaction.

Done in English, and notified in writing on 14 February 2023, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

       Dorothee von Arnim                                                Jovan Ilievski
          Deputy Registrar                                                      President