EHRM, 06-07-2010, nr. 16965/04

The Government argued that Article 6 § 1 of the Convention was not applicable to the proceedings at issue. They explained that records in operational files served only as tools, mainly for the prevention of crime and in certain situations to help investigate them. Operational records files contained information concerning events, circumstances and persons. Data on a particular person could be recorded in an operational file only in connection with investigative activities carried out in respect of other persons. The fact that certain operational activities had been carried out in respect of a certain person did not mean that that person was suspected of having committed a crime. Moreover, a record in an operational file could not be equated with the legal status of a suspect or official notification of an allegation that a person had committed a criminal offence. Operational information was to be considered only as certain preliminary information. Consequently, it had to be declassified if the authorities wanted to use it as evidence in criminal proceedings. Relying on the above, the Government submitted that Article 6 § 1 of the Convention, under its criminal head, was not applicable to the applicant's case.

In the alternative, the Government argued that, contesting the lawfulness and reasonableness of listing the applicant's name in the operational records file under the administrative procedure, could not be considered a determination of his civil rights. The litigation at issue had concerned an administrative dispute, a conflict between the applicant and a public administrative body — the Police Commissariat. The applicant had challenged before the domestic courts the actions of State agents when carrying out one of the State's main functions — guaranteeing public security and safety — and in this particular connection the State institution had not been acting as a private party. The State had a broad margin of discretion over the exercise of the right to carry a gun. Moreover, an administrative decision to grant or withhold such a licence did not directly affect a person's property rights or legal interests. For the Government, the right to carry a gun was not to be considered as being equal to, for example, the right to carry out certain professional activities. Nor did it affect a person's possessions.

On this latter point, the Government submitted that it did not follow from Article 38 of the Law on the Control of Arms and Ammunition that the listing of a person's name in an operational records file and the subsequent possibility of his or her firearm being taken would be acts amounting to an interference with that person's property rights by the State. Once a licence to carry a gun had been revoked, the gun was to be temporarily kept by the police. The subsequent sale of the gun was to be for a reasonable price and the money received was to be given to the person concerned. As a result, the person would receive fair compensation and no determination of his or her civil rights would be at issue.

As to the particular situation of the applicant, the Government submitted that, after the applicant's licence to carry a weapon had been revoked, his guns had been kept by the police and had not been sold. In July 2004, after the applicant had been granted a new licence to carry a gun, his guns had been returned to him.

Relying on the above, the Government asserted that the applicant's complaint under Article 6 of the Convention was inadmissible ratione materiae. In the alternative, the Government submitted that the complaint was manifestly ill-founded.

The applicant argued that, even though the domestic proceedings had taken place in the administrative courts and it had been a dispute of an administrative nature, his civil rights had nevertheless been affected. After information about him had been placed in the operational records file on 13 December 2002, the police had decided to revoke his licence to keep and carry firearms. Pursuant to Article 38 of the Law on Arms and Ammunition Control, the State authorities had been obliged to take the applicant's guns away from him. It followed that his being listed in the operational records file was an act which had interfered with his property.

Alternatively, the applicant submitted that the notion of ‘criminal charge’, within the meaning of Article 6 § 1 of the Convention, was not to be interpreted narrowly. In particular, Article 9 of the Law on Operational Activities stipulated that an operational investigation was to be conducted when there was information that a serious crime was being planned or had been committed. Consequently, the Law gave the impression that the operational records file was connected with a suspicion that a person was, to some extent, implicated in a criminal activity. This impression was accentuated by the fact that firearms licences were to be revoked in respect of persons who had been the subject of operational investigations. The State thus showed distrust towards such people. Consequently, it was understandable that a person was entitled to know what factual data had given the impression that the individual had been implicated in criminal activities.

From the above, the applicant concluded that his complaint under Article 6 § 1 of the Convention fell within the Court's jurisdiction under both the civil and criminal heads of that provision.

The Court will first consider whether Article 6 § 1 of the Convention applies under its civil head. In this connection the Court reiterates that, according to the principles laid down in its case-law (see, for instance, Kerojärvi v. Finland, 19 July 1995, § 32, Series A no. 322; Gülmez v. Turkey, no. 16330/02, § 28, 20 May 2008), it must first ascertain whether there was a dispute (‘contestation’) over a ‘right’ which can be said, at least on arguable grounds, to be recognised under domestic law, irrespective of whether they are also protected under the Convention. The dispute must be genuine and serious; it may relate not only to the existence of a right but also to its scope and the manner of its exercise; and the outcome of the proceedings must be directly decisive for the right in question.

As regards the first of the above-mentioned criteria, that the dispute must concern a right which arguably exists under national law, it should further be reiterated that Article 6 § 1 does not guarantee any particular content for those civil rights in the substantive law of the Contracting States: the Court may not create through the interpretation of Article 6 § 1 a substantive right which has no legal basis in the State concerned (see Fayed v. the United Kingdom, 21 September 1994, § 65, Series A no. 294-B).

Turning to the question of whether an arguable claim existed in the present case, the Court shares the Government's view that the State authorities enjoyed a wide margin of discretion in assessing whether the applicant was eligible for a firearms licence. Nonetheless, for the reasons outlined below, the Court finds that the revocation of that licence and the subsequent judicial proceedings to determine the lawfulness and reasonableness of the listing of his name in the operational records file, even though they had been conducted in accordance with the administrative procedure, had an effect upon the applicant's civil rights.

The Court recalls that the applicant's firearms licence was revoked because an operational records file, compiled by police officers and containing data on the applicant's alleged risk to society, had been opened. The applicant attempted, albeit unsuccessfully, to obtain that information from the police and to challenge its validity before the domestic courts. There can be little doubt that such information had an impact on the applicant's reputation, which merits protection under Lithuanian law (see paragraph 16 above) and falls within the scope of Article 8 of the Convention (see, for example, Fayed v. the United Kingdom, cited above, §§ 67–68; Chauvy and Others v. France, no. 64915/01, § 70, ECHR 2004-VI).

Likewise, the Court observes, with reference to its case-law, that when information about a person's life, including, inter alia, his criminal record, is systematically collected and stored in a file held by agents of the State, this information falls within the scope of ‘private life’ for the purposes of Article 8 § 1 of the Convention (see Rotaru v. Romania [GC], no. 28341/95, §§ 43–44, ECHR 2000-V; Amann v. Switzerland [GC], no. 27798/95, §§ 65–67, ECHR 2000-II; Leander v. Sweden, 26 March 1987, § 48, Series A no. 116). The Court further notes that Article 22 of the Lithuanian Constitution guarantees the protection of a person's private life.

The Court cannot rule out the possibility, albeit theoretical, that the listing of the applicant's name in the operational records file could have resulted in restrictions on him entering certain private-sector professions or otherwise earning a living, thereby again affecting his private life (see Sidabras and Džiautas v. Lithuania, nos. 55480/00 and 59330/00, §§ 47–50, ECHR 2004-VIII). Indeed, as can be seen from Lithuanian legislation (see paragraph 19 above), certain professions, such as that of security officers, are not accessible to persons who have been listed in an operational records file. In this respect the Court notes Article 48 of the Lithuanian Constitution, which provides that everyone is free to choose a job or occupation.

Lastly, the Court notes the applicant's argument that the revocation of his firearms licence had meant that he was obliged to hand in the guns which he already owned to the State authorities for disposal, albeit in exchange for money (see paragraph 10 above). There can be little doubt that this involved an interference with another civil right, guaranteed both by Article 23 of the Lithuanian Constitution and Article 1 of Protocol No. 1 to the Convention, that is to say, the right to the protection of property.

In the light of the above, the Court finds that Article 6 § 1 is applicable to the impugned proceedings under its civil head. Consequently, the Government's objection that the applicant's complaint is incompatible ratione materiae must be dismissed.

Having regard to its conclusion in the preceding paragraph, the Court does not find it necessary to determine whether the criminal limb of Article 6 § 1 of the Convention was applicable in the present case to the proceedings before the Lithuanian courts.

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