CEDH · CASELAW;CLIN;ENG — 2 février 2010

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France (dec.) - 964/07 Decision 2.2.2010 [Section V] Article 6 Civil proceedings Article 6-1 Civil rights and obligations Inability to access or secure rectification of personal data in Schengen database:         Article 6 § 1 inapplicable; inadmissible   Facts –The applicant, a Romanian national, was denied a visa in 1997 for a visit to Germany, and the following year for a visit to France, on the ground that he had been reported by the French authorities to the Schengen Information System for the purposes of being refused entry. The applicant applied to the French National Data-Protection Commission (“the CNIL”) seeking access to his personal data in the French Schengen database and the rectification or deletion of that data. The CNIL carried out the requested checks and then indicated that the procedure before it was now exhausted. The applicant brought an action for judicial review before the Conseil d’Etat , which found that he had received information concerning his data entry in the French Schengen database and that his action had therefore become devoid of object. The Conseil d’Etat further found that, on the basis of the investigation carried out, it was impossible to ascertain the reasons for the applicant’s inclusion in the database and that it could not therefore be assessed whether the CNIL’s denial of his request for rectification or deletion had been lawful. The CNIL indicated that the applicant had been reported to the Schengen Information System at the request of the French Security Intelligence Agency (“the DST”), which alone could provide the relevant information to enable the Conseil d’Etat to ascertain whether or not the applicant’s request for rectification of his data had been well-founded. In 2006 the Conseil d’Etat observed that, having regard to all the material in the case file, the grounds given by the CNIL for its decision not to rectify or delete the data concerning the applicant provided valid justification for that decision. Accordingly, the applicant’s action for the annulment of the CNIL’s decision had been ill-founded. Law – Article 6 § 1: Decisions regarding the entry, residence and expulsion of aliens did not concern civil rights or obligations or a criminal charge, within the meaning of Article 6 §   1. Accordingly, the measure preventing the applicant from entering France – regardless of its reasons, consequences or duration – did not fall within the scope of that provision. The procedure at issue, whereby individuals were allowed under French law to access their personal data in the Schengen Information System and, if necessary, to have that data rectified or deleted, was closely connected to the regulation of the entry and residence of aliens, and related in particular to the issuance of visas. It was when the French or German authorities had refused to issue him with a visa that the applicant had been informed of his inclusion in the Schengen Information System. Moreover, it was apparent from the case file that, by lodging his applications with the CNIL and the Conseil d’Etat , the applicant’s aim had ultimately been to enter the Schengen area and travel within it. Accordingly, since the proceedings in question were connected with a subject-matter falling outside the scope of Article   6, they did not have the purpose of determining civil rights or obligations or a criminal charge within the meaning of that provision. Conclusion : inadmissible (incompatible ratione materiae ). Article 8: The Convention did not as such guarantee the right of an alien to enter or to reside in a particular country. In so far as the applicant’s professional relations, especially with French and German companies and with figures from political and economic circles in France, could be regarded as constituting “private life” within the meaning of Article   8, the interference with this right caused by the reporting of the applicant by the French authorities to the Schengen Information System had been in accordance with the law and had pursued the legitimate aim of protecting national security. The applicant had not shown how he had actually suffered as a result of his inability to travel in the Schengen area. He had merely referred, without giving particulars, to a considerable loss on account of the effect on his company’s performance, and had pointed out that he had not been able to go to France for surgery that he had ultimately obtained in Switzerland, but this had not apparently had any particular consequences for his state of health. The French authorities’ interference with the applicant’s right to respect for his private life had therefore been proportionate to the aim pursued and necessary in a democratic society. In so far as the applicant had complained of interference with his private life solely on account of his inclusion in the Schengen Information System for a long period, the Court reiterated that everyone affected by a measure based on national security grounds had to be guaranteed protection against arbitrariness. Admittedly, his inclusion in the database had barred him access to all countries that applied the Schengen Agreement. However, in the area of entry regulation, States had a broad margin of appreciation in taking measures to secure the protection against arbitrariness that an individual in such a situation was entitled to expect. The applicant had been able to apply for review of the measure at issue, first by the CNIL, then by the Conseil d’Etat . Whilst the applicant had never been given the opportunity to challenge the precise grounds for his inclusion in the Schengen database, he had been granted access to all the other data concerning him and had been informed that considerations relating to State security, defence and public safety had given rise to the report on the initiative of the DST. The applicant’s inability to gain personal access to all the information he had requested could not in itself prove that the interference was not justified by national security interests. The French authorities’ interference with the applicant’s right to respect for his private life had therefore been proportionate to the aim pursued and necessary in a democratic society. Conclusion : inadmissible (manifestly ill-founded).   © Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court. Click here for the Case-Law Information Notes