On sight' postage of procedure acts, serious violation of the right to privacy, family and private life and of the secrecy of correspondence
| Author | Nasty Vladoiu |
| Position | Academic lecturer |
| Pages | 1-7 |
1
"ON SIGHT" POSTAGE OF PROCEDURE ACTS, SERIOUS VIOLATION
OF THE RIGHT TO PRIVACY, FAMILY AND PRIVATE LIFE AND
OF THE SECRECY OF CORRESPONDENCE
NASTY VLĂDOIU
∗)
Abstract
One of the frequent mistakes of administrative practice, generated by a combination between
the current legal void regarding the transmission procedural acts and the faulty interpretation of
the judicial procedure texts and of the rules of internal procedure, is the non-enveloped procedure
of transmission. The consequence of this procedure, apparently irrelevant, is the violation of some
fundamental constitutional values, of the recipient: the right to privacy, family and private life and
the secrecy of correspondence, protected both domestically and internationally.
The ground of the problematic matter is found in Articles 92¹ and 114¹ of the Civil Procedure
Code, which, although ensures the right to defense and information, none of them makes any
mention of how to communicate the procedural acts. We are in the presence of a legal void, which
usually is covered by the one who interprets is as an violation of privacy, family and private life and
of the secrecy of correspondence, interpretation that can have negative consequences on social,
professional and especially private life. Neither the Internal Rules of Procedure of the courts nor
Law no. 304/2004 regarding judicial organization do not solve this problem, leaving the same
opportunities for interpretation. From the entire procedural regulation we can easily see the official
concern regarding the officialdom of the transmission of procedural documents, and their arrival at
destination to achieve the purpose for which they were sent, but without giving due importance,
from a legal and constitutional but also from a fair and moral point of view, to the preservation of
confidentiality and secrecy of the sent documents.
Keywords: "On sight" postage of procedure acts, violation of the right to privacy, family and
private life and of the secrecy of correspondence, moral damages.
I. Introduction
In this analytical study we aim to point out one of the frequent mistakes of administrative
practice, generated by a combination between the current legislative void in the mode of
transmission of procedure acts and the faulty interpretation of the texts of judicial procedure and of
the internal regulations, with the consequence of violating fundamental values, constitutional right
to privacy, family and private life and the secrecy of correspondence. In the analysis that follows
regarding the damage brought on Romanian citizens, who have procedural legitimacy or potential
procedural legitimacy in Romanian legal procedures by sending "on sight" procedure acts
(summons, application, documents, judgments and other acts), it is necessary to determine, initially,
the generating cause, for then the effects to be seen easily and clearly.
∗)
Academic lecturer. E-mail: vladoiu.nasty@gmail.com
2
II. Vicious interpretation of legal rules in this matter - direct cause of a violation of
constitutional values
The base material of the problematic matter of concern is to be found in Articles 92
1)
and 114¹
2)
of the Civil procedure code, regulatory provisions which, while respecting the right to information
and defense, through the possibility given to the defendant or the recipient of the document to take
cognizance of its contents, none of it makes no mention of how to communicate the procedure acts,
namely enveloped or non-enveloped, in a sealed or unsealed envelope. It may be noted that in
Article 86 (3) of the Civil procedure code, there is a limitation to only specifying that the
communication is to be made "by post, as registered mail with proof of receipt." The term "letter"
does not imply an envelope and does not ensure by default the confidentiality of the sent document,
as shown also in the Romanian explanatory dictionary’s definition
3)
: "Letter, letters, s.f. 1. Written
communication sent by post or through a person; epistle; 2. written paper, document, act; 3. writing.
Thereby, the method of transmission of procedural documents for court procedures, by letter,
does not automatically imply enveloping the letter and does not represent a whole with its cover, the
envelope, a wrapper which should undoubtedly keep secret the contents. There is indeed, a general
perception, a practice in this respect, but not a unitary one however, as it results even from the
purpose of this analytical study, in order to establish a whole to part correlation, between the letter
and its cover, the envelope. The purpose of enveloping the letters is to protect sent information to be
seen by persons other than the recipients. However, in this particular case, of transmission of
procedural acts by procedural agents or postal service, fundamental rights are violated and continue
to be violated.
The vicious and neglectful interpretation of the practice, even unitary, in the sense of sending
non-enveloped documents, shows a disregard of these core values and generates disastrous
consequences, which consist, first of all, in the violation of fundamental human rights-the right to
privacy, family and private life and the secrecy of correspondence. Thereby, only this interpretation
could affect the above mentioned rights, and not the wise and good faith one, of sending any
communication in a sealed envelope or through other means which ensure confidentiality. There
can be easily seen that in all cases the procedural or post agents, according to the court’s provisions,
hand non-enveloped procedural documents to persons other than the recipient, the danger being
imminent.
It is by default understood that through the implementation of a legislative text, that reflects the
will of the state, of the legislative power, though vaguely and incompletely formulated, the
fundamental law of the country should not be violated, the Constitution, other internal laws and
international conventions to which Romania is part. The situation is in this case more difficult, if we
consider that those who implement the law, by violation of fundamental values, are precisely the
representatives of the judiciary.
This problem of interpretation presents interest in civil procedures particularly in pre-hearings,
when the court, after setting the hearing date, sets the citing of the defendant and the
communication of a copy of the action (with the whole presentation of facts, true or not). It does not
produce the same consequences and is not the subject of our debate the communication, in the same
manner, of a copy of the dispositions or of the court’s decision, because at that time the defendant's
legal situation is already completed and public, and a non confidential communication could
produce the same sensitive consequences even if the disclosure of the information would be made
in another manner.
Therefore, we are in the presence of a legislative void, which usually is covered by
interpretation in the above mentioned manner of violation of privacy, family and private life and the
1)
Article 92 CPC identifies the persons which in diff erent situations, carefully detailed, can receive summons and
other procedural documents in the place of the actual recei ver.
2)
Article 114 (2) CPC: "The President will dis pose in the same time that the defe ndant should recei ve, together
with the summons, copies of his request and of the other documents, making him aware of his obligation to submit his
point of view (...) ".
3)
The Romanian language Explanatory Dictionar y, Encyclopedic Universe Publishing House, 3
rd
Edition, 2009.
3
secrecy of correspondence, interpretation that can have negative consequences on social,
professional and in particular personal life. Needless to explain is the confidential and strictly
personal character of the procedure acts inherent to a legal procedure, but is however necessary, due
to previously exposed reasons. Thus, let us imagine, for example, the hypothesis of an action to
establish paternity when the court, setting the hearing dates, according to art. 114¹ CPC, has to
notify the defendant the summons and o copy of the action, of course, non-enveloped. The
procedural agent, in his legal actions, goes to the home address of the defendant, which is not to be
found, leaving the documents and, in particular, the action describing the facts, hypothetical or not,
to any other person living there, as art. 92 CPC shows, such as, let’s assume, even his wife or
another relative, his family life or public image, previously impeccable, being about to collapse. Or
even more interesting, respecting strictly, the Code of Procedure, the action gets in the hands of the
doorkeeper or of the administrator of the building and thus the facts get in the mouth of the public,
before being cleared. In other words, as the legislator himself wants, from any person who lives
with us until the administrator and the doorkeeper, meaning anyone, as the legal reference shows,
may know the details of our private life, staged scandals or processes in which with bad faith we are
involved, the negative consequences of this unfair situation being easy to be seen.
It has to be clarified the fact that the problem of violation of the two constitutional values and
thus the appearance of negative consequences can not be imagined by the simple situation of other
persons receiving the procedural acts or by leaving them careless in other’s mailbox, only if the
expedition is made in non-enveloped or unprotected mail. Consequently, we believe that this state
of danger could be avoided by minimal care from the courts, which through an interpretation of the
procedure texts in compliance with the constitutional values, would order the transmission of
documents in a sealed envelopes.
We see the same legal void also in the provisions governing criminal procedure, art. 175
4)
, art.
178-179
5)
Criminal Procedure Code, but we can not talk about the same negative effects. Although
the text of the Criminal procedure code provide the same general rules regarding the expedition of
documents as the Civil procedure code, the practical applicability does not produce the same
impact, as we are not the presence of an action, and acts materialized in ways of instituting the
proceedings (complaint, denunciation, the minutes of the referral office) are not to be
communicated. In addition, given the confidential nature of the prosecution phase, there is no
question of communicating non-enveloped documents, and in the transmission of dispositions or
court decisions, earlier discussions with regard to communications of the civil court decision remain
valid in the criminal trial also.
Another legal act that could address the legal void is The Courts Rules of Procedure Act,
however this document leaves the same opportunities to interpret, disposing in the same ambiguity
that "correspondence will be sent by mail, courier or procedural agent, fax or e-mail or through any
other manner which can be identified and monitored and which ensures its official character".
6)
Consequently, one can easily see the official concern regarding the formality of the transmission of
procedure acts, and their arrival at destination to achieve the purpose for which they were sent,
without giving due importance, legal and constitutional, also in terms of fair and moral point of
view, to preserve the confidentiality and secrecy of submitted documents.
Therefore, although previously mentioned legal texts enshrine the obligation to transmit
information and clear also the means of achieving this duty, none of them require the court to order
the transmission of documents in a sealed envelopes, thus omitting a very important aspect, which,
if interpreted, can create, as we mentioned earlier, the danger of violation of two fundamental
rights, an inviolability (right to privacy, family and private life) and socio-political right (secret of
correspondence), if interpretation implies a non-enveloped transmission.
4)
Article 175 (2) CPC: "summons shall be given by specific agents responsible for this task or by postal service”.
5)
Article 178-179 CPC r egulates the procedure of handing procedural acts and the persons authorized to receive
them.
6)
Article 94, Rules of Procedure of Courts.
4
III. The protection of violated rights in national and international instruments
Undoubtedly, the Romanian state, through the Ministry of Justice, has a negative general
obligation, not to prejudice the fundamental rights of its citizens, legally recognized and regulated.
The state has a positive obligation to provide citizens the opportunity to freely develop their
personal activity, into a material order, intellectual and moral, and accordingly has the negative
obligation not do anything to interference with the free development of physical, intellectual and
moral activity of the individual. Consequently, it has certainly the duty to respect and to ensure
absolute rights of citizens to life and mental integrity, to privacy, family and private life and secrecy
of correspondence.
Thus, despite the legal provisions mentioned above, which seem to completely forget about the
existence of fundamental values, Romanian Constitution and a number of other national and
international regulations provide them adequate protection.
Romanian Constitution expressly covers in Chapter II "Fundamental rights and freedoms", as
subjective essential rights, the right to privacy, family and private life
7)
, and secrecy of
correspondence
8)
.
Thereby, the Basic Law requires public authorities to respect and protect privacy, family and
private life against any legal subject (person or authority, group, etc.). No one can interfere in the
privacy, family or private life of a person without its consent, consent which of course has to be
explicit and freely expressed
9)
. In the same time, article 26 protects the right to personal image, as a
right inseparable from respecting privacy.
Article 28 protects the secrecy of correspondence, based on the fundamental principle of the
inviolability of correspondence, which aims to protect the individual’s ability to communicate or to
receive certain thoughts, feelings, information, without being known by others, censored or made
public
10)
. To comply with this positive right, the state should get involved, by creating rules that
forbid the use by others of data and information about a person's private life
11)
. Protection of
personal data is regulated also by other international legal instruments such as the Charter of
Fundamental Rights of the European Union, which enshrines expressly in art. 8, that "Everyone has
the right to protection of personal data concerning him" and that "Such data must be processed
fairly for specified purposes and on the consent of the person concerned or some other legitimate
basis laid down by law."
Convention on Human Rights, "The right to private and family life"
12)
, ratified by Romania in 1994.
According to paragraph (2) of this article the interference of a public authority in the exercise of this
rights is not permitted unless it is prescribed by law and would, in a democratic society, be a
necessary measure to protect state interests, for economic welfare of the country, for the prevention
of disorder or crime, to protect health, morals, rights and freedoms of others. The exemption is
allowed only in case of emergency, war or other danger that threaten the life of the nation.
Corroborating Article 8 with Article 18 of the Convention, it is clear that the limitations to these
rights can be applied only for the purpose for which they were provided, in the limiting cases listed
above.
Therefore, the privacy of letters and other postal communications is inviolable, without
distinction, and the limitation of privacy, private life and secrecy of correspondence may be made
only by law and only if necessary, in cases exhaustively provided, such as: safeguarding national
7)
Article 26, 1
st
paragraph: "Public authorities shall respect and protect the privacy, family and private life".
8)
Article 28: "The secrecy of letters, telegrams and other postal communications, of telephone conversations and
other legal means of communication is inviolable".
9)
To see M. Constantinescu, A. Iorgovan, I. Muraru, E.S. Tănăsescu, Th e Revised Constitution, Bucharest, 2004.
10)
To see Gheorghe Iancu, The rights, freedoms and fundamenta l duties of Romania, All Beck Publishing House,
Bucharest, 2003, p. 298.
11)
To see Ștefan Deaconu, Constitutional Law, C.H. Beck Publishing House, Bucharest, 2011, p. 289.
12)
Article 8 (1): E veryone has the right for his private and family life, home and his correspondence to be
respected.
5
security, public order, health or morals, rights and freedoms of citizens, conducting a criminal
investigation, preventing the consequences of natural disasters, or an extremely severe
catastrophe
13)
.
Strasbourg Court retains in Keegan v. Ireland
14)
decision that Article 8 of European Convention
on Human Rights regarding privacy and family life, tends, in essence to protect people against
arbitrary interference of public authorities in their privacy, but at the same time, may impose certain
positive obligations inherent in their observance of the right to privacy and family life. The border
between the positive and negative obligations of states, imposed by Article 8, does not have a
precise definition, but the principles are still comparable. In both cases, the authorities must find the
right balance between the competing interests of the people involved and society as a whole. In
Haralambie against Romania decision
15)
, the Court recalls that even public data can be private if
these are obtained and stored systematically in de files of public authorities
Another international instrument that establishes the obligation to observe these rights is the
International Covenant on Civil and Political Rights
16)
, which in Article 17 provides that "no one
shall be subjected to arbitrary or unlawful interference in his private life, family, home or
correspondence (..)" and that "Everyone has the right to protection of the law against interference or
attacks".
The criminal legislator also offers protection to the secrecy of correspondence. Although the
Criminal Code of 1864 incriminates this act only when committed by an active qualified subject, in
the existing Criminal Code (1968) the sphere of active subjects has been enlarged, making it un-
circumstanced. Thus, Article 195 of the Criminal Code provides that opening mail addressed to
another, theft, destruction or retention of correspondence and disclosure of correspondence, even if
it was sent or opened by mistake is the crime of violation of secrecy of correspondence. Therefore,
given the circumstances mentioned above, the achievement of the material element by disclosure of
the content presents interest even if the letter was sent open. It may be noted, however, that we are
not in the presence of a real protection. Thus, in the cases described above, not in all situations an
active subject can be identified, whereas, on one hand, not in all the cases the receiver of the
correspondence discloses it or shares it with others, and on the other hand, it can not be certain who
saw the non-enveloped document, exposed to public eye. Therefore, although there is no disclosure
and accountability requirements are not met for an offense under Art. 195, however adverse
consequences of a non-enveloped transmission can be observed, for example in the relationship
recipient-receiver of the letter. At the opposite there cam be the hypothesis of a disclosure, but the
offender is unknown, as the procedural agent left the documents on the front door without being
placed in any sealed envelope. Consequently, the curious public saw the content of the document,
has spread the information, the negative effects of this situation occurred, but the responsible person
can not be known and thus there is no criminal liability, because the prosecution, which begins only
by prior complaint
17
involves knowing who the offender is.
As concerns the procedural and postal agents, which by passing a non-enveloped document
could be quite curious as to read it and, if they do not make it public they do not commit any crime.
However, if they disclose the information from those acts, which they have acquired by their
profession and if this disclosure produces legal consequences, they become active subjects of the
offense of disclosure of professional secrecy
18)
. However, it would be difficult to prove in this form.
Given the importance given to the person, his rights and freedoms by the new Criminal Code
(Law no. 286/2009) we find in its regulations also the incrimination for violation of the secret of
13)
Article 53. "Restriction on the exercise of some ri ghts or freedoms" - the Romanian Constitution.
14)
To see Keegan v. Ireland Decision, 26 May 1994.
15)
To see Haralambie against Romania decision, 27 Oct ober 2009.
16)
The International Covenant regarding Civil and Politica l Rights was ratified by Romania in 1974.
17)
Article 195 paragraph (3) Criminal Code.
18)
Article 196 Criminal Code: "The disclosure, without right, of data by the person who has been entrusted with
them or of which he has known due to his profession, if the act is likely to cause damage to a ny person, is punishable
from 3 months to 2 years or with a fine. "
6
correspondence in the secret correspondence, in the same way the act is the incriminated in the
current Criminal Code- art. 302 - "Violation of secrecy of correspondence."
Moreover, Law no. 677/2001 on the protection of individuals regarding the processing of
personal data and free movement of such data, as amended, defines as a way of personal data
processing also the disclosure to third parties by transmission, dissemination or otherwise, of any
information concerning an identified or identifiable person directly or indirectly, by reference to
factors specific to his physical, physiological, psychological, economic, cultural or social identity
19)
.
Although generally it is necessary the consent given expressly and unequivocally, for processing
personal data, the same article 5 provides also limiting situations when consent is not required (and
in none of the exceptions this fact situation fits), but with the express mention in paragraph 3 of
Article 5, that the preceding provisions do not affect the legal regulations which require public
authorities to respect and protect intimate, family and private life. Law no. 677/2001 provides
expresis verbis that personal data processing on crimes or contraventions si made only with the
establishment of adequate safeguards for the rights of data subjects to be respected.
But we do not find yet a protection of the right to privacy, family and private life and secrecy of
correspondence, but again we are faced with huge legal void, in Law no. 304/2004 on judicial
organization. Thus, after Article 5 states vaguely and in an impersonal tone that "the Ministry of
Justice assures the proper organization and administration of justice as a public service", there is no
provision which at least mitigates the legal void from the above mentioned texts, but the same
silence that can generate the above listed consequences is kept.
IV. Possible solutions for damage repair and ferenda law
In terms of solving this problem, we consider that it should be analyzed from several
perspectives.
Thus, if we consider the existing legal void in the text of the procedure codes and the principle
Ubi lex non distinguit nec nos distinguere debemus, under the interpretation of sending non-
enveloped procedure acts, it would not be too much if the exception of unconstitutionality would be
invoked. By combining art. 92 and Article 114¹ CPC and by interpreting them in the previously
mentioned sense, violations of fundamental rights would occur, specifically covered by Article 26
and Article 28 of the Constitution. Although the document is sent to the recipient and the procedure
is performed according to the law by receiving the documents, without assurance of confidentiality,
by any other person, an unjustified harm is done. Therefore, the problem lies not in receiving the
documents by other people, but that they are transmitted as such, without a sealed envelope or other
methods to ensure privacy. But because the text of the Civil Procedure Code does not expressly
mention that the transmission of the procedure act is made in an unsealed envelope, as the text is, it
does not violate constitutional provisions so that the conditions to be made unconstitutional are not
met.
Neither considering the Internal rules of procedure there can not be invoked the exception of
unconstitutionality, under administrative Law no. 554/2004, for the same reasons of the procedural
texts which can not be subject to the exception of unconstitutionality. Although it is an
administrative act, by the rules contained it does not violate fundamental rights, but this situation is
reached by a faulty interpretation of the provisions governing judicial proceedings by the
authorities.
Consequently, we can see that what creates a sense of threat to fundamental human values are
not the statutory provisions, by their incompleteness, but the practice of courts, which, in their
desire to ensure compliance with all costs of the right to defense and information, completely forget
about the right to privacy and the secrecy of correspondence.
In addition, the one harmed in his rights, can not attack neither the provision/communication
disposition, because, although by it’s implementation through procedural agents it can lead to
19)
Article 3 (b), Law no. 667/2001 for the protection of persons regardin g personal data processing and free
movement of such data.
7
injury, because it as such, as procedural act, through which prior hearing activities are performed,
does not breach into the incomplete texts of the procedure.
Given the assumptions presented above, we believe that the legal means by which the person
whose rights are violated by a unitary but faulty administrative practice of the courts, can obtain a
repair of the damage that he was caused, is a action for damages brought against the state, based on
art. 1357
20)
New Civil Code. Thus, the one whose rights were violated must prove the illicit deed -
the transmission of non-enveloped procedure acts, personal injury, the right to privacy, family and
private life and secrecy of correspondence, causation between them and the guilt of the court. The
State, through the Ministry of Justice, with a clear legal culpable conduct, flagrantly violating
fundamental rights and freedoms of its citizens by the total lack of interest, ignorance, indifference
and passivity of judicial bodies and their representatives, responsible for communicating procedural
documents, must be held responsible.
By lege ferenda, we believe that this problem frequently encountered in the practice of the
courts, should be regulated carefully and thoroughly addressed so that some fundamental rights and
freedoms of citizens which were thrown into a dangerous anonymity by the Romanian state itself,
guarantor of the democracy, are put into proper light. Consequently, the legal void can be covered
simply by adding to the provisions of the Rules of Procedure of the courts, and why not, even in the
texts of the codes of procedure, the term "by enveloped letter/sealed envelope."
V. Conclusions
Until this legislative void is covered, we believe that those injured in their right to privacy,
family or private life and the secrecy of correspondence, by ignorance, unfair and unconstitutional
interpretation of the texts of the legal procedure, the only way to repair the injury is to introduce an
action at the common law court requiring compensation in accordance with the suffered injuries.
References
1. V.-M. Ciobanu, Theoretical and practical treaty of civil procedure, National Publishing
House, Bucharest, 1996-1997;
2. C.Stătescu, C.Bîrsan, Civil Law. General theory of obligations, IXth edition, Hamangiu
Publishing House, Bucharest, 2008,
3. N.M.Vlădoiu, Constitutional protection of life, physical and psychical integrity, Hamangiu
Publishing House, Bucharest, 2006;
4. I.Muraru, E.S.Tănăsescu, Constitutional Law and Political Institutions, 13
th
edition,
C.H.Beck Publishing House, Bucharest, 2009.
5. Ș. Deaconu- Constitutional Law, C.H. Beck Publishing House, Bucharest, 2011;
6. V.Pașca, The Constitution and the Criminal Code, All Beck Publishing House, 2002;
20)
Article 1357, paragraph (1): "The one who causes another injury by an unlawful act committed with guilt, is
obliged to repair it", paragraph (2): "The author responds f or the slightest fault."
