Constitutional guarantee of the confidentiality of inquiries
Right to private life
Protection of personal data
Weighing of interests
RULING Nº 428/08
12 of August of 2008
The constitutional guarantee of the confidentiality of inquiries and investigations results in a restriction of the ordinary legislature's margin of manœuvre, since it can no longer do away with this confidentiality requirement and is obliged to give it a minimum degree of effectiveness. In addition, potential conflicts between the confidentiality of inquiries and investigations and other constitutionally protected interests will have to be resolved in the general context of conflicts of constitutional rights, through their weighting and their possible practical harmonisation.
The confidentiality of inquiries and investigations is not a right per se. It rather serves a functional purpose: that of safeguarding the inquiry and certain personal interests deemed worthy of protection. A procedural rule guaranteeing defendants' right of access to the case-file but failing to protect the inquiry, to the point where it can be called into question, is contrary to constitutional requirements.
In the case under consideration the Constitutional Court gave a ruling of unconstitutionality in respect of the interpretation of Article 89-6 of the Criminal Code whereby, before the closing of an inquiry to which the principle of confidentiality of inquiries and investigations had been applied, defendants had, and could not be refused, unrestricted access to all the elements in the case-file, including information concerning other persons' private lives, such as bank and tax data covered by a professional confidentiality obligation, these elements having been examined without any assessment of their relevance and their evidential value.
What was at issue here was the constitutional principle that the confidentiality of inquiries and investigations should be guaranteed from both an internal and an external standpoint. The former concerned participants directly involved in the procedure. The second concerned all third parties having nothing to do with the procedure.
Until the entry into force of the criminal procedure reforms in 2007 the rule was that "under an adversarial model governed by the principle of investigation" the need to harmonise the system's various aims justified different solutions according to the stage reached in the procedure. However, at no point in the procedure did the prevailing principle, whether confidentiality or publicity, have an absolute value. Even if at the trial stage the principle that the proceedings should be public was justified on the ground that during this stage the presumption of innocence co-existed with the accusation and the bringing of charges, the necessary restrictions were also applied to that principle through the normal functioning of the courts, with a view to safeguarding certain human rights and guaranteeing that justice was done and the truth discovered.
It had been decided that, as a general rule, the pre-trial investigation stage would be subject to the principle of confidentiality (weakened by the revision of the Code of Criminal Procedure in 1998), but that a public procedure was permissible where the accused alone had requested that an investigation be carried out without the request mentioning any objection to its being public.
With regard to the inquiry stage, it had always been held that, at this stage, provision must be made for departures from the principle of publicity since the inquiry included all the steps aimed at verifying that an offence had been committed, identifying the perpetrators and determining their liability, and finding and gathering evidence.
The reform of 2007 had made a public procedure the rule, even at the inquiry stage. Confidentiality had become an exception, and the public prosecutor could depart from the publicity rule only with the investigating judge's consent.
It must nonetheless be borne in mind that, following the constitutional reform of 1997, the constitution contained a direct obligation to safeguard the confidentiality of inquiries and investigations.
As could be seen from the parliamentary debate preceding this revision, the fundamental aim of making protection of the confidentiality of inquiries and investigations a freestanding principle was not to reduce this protection to the defence of citizens' rights. It had been underlined that protection was also justified by the need to guarantee the effectiveness of the criminal investigation and the prosecution, in the context of the state's essential role of guaranteeing fundamental freedoms and rights and respect for the principles of the rule of law, attention being drawn to the fact that the confidentiality of inquiries and investigations was also of importance for the public prosecution service and the courts.
In this judgment the Constitutional Court was asked to review the constitutionality of the normative criterion applied in the challenged decision.
In the light of the public interest inherent in a criminal investigation, the relevant article of the Code of Criminal Procedure must not allow automatic access to reports whenever an inquiry could be seriously called into question, where their disclosure was not conducive to discovery of the truth or endangered the life, physical/mental integrity or liberty of parties to the proceedings and victims of the offence.
It was only where these conditions had been fulfilled that it could be asserted that the constitutional requirement that "the law shall provide for and guarantee adequate protection of the confidentiality of inquiries and investigations" was respected. In the case under consideration the challenged decision had adopted not the "interpretation consistent with the Constitution", but the normative criterion that, once the maximum time-limits for the inquiry and the extensions provided for had expired, the defendant could have unrestricted access to all the elements of the inquiry regardless of their nature.
It was a matter of verifying whether this normative criterion satisfied the constitutional requirement of adequacy of protection of the confidentiality of inquiries and investigations, bearing in mind that, in the case under consideration, as the question of constitutionality had been formulated, solely the protection of the rights of persons other than the party requesting access to the reports was at issue.
The judgment answered this question in the negative.
Although it was true that the concern to protect defendants (and other participants in proceedings) against excessive delays in closing inquiries was linked to the rules deriving from the Code of Criminal Procedure, at the same time it was equally true that, frequently, above all in connection with economic crime, the rapid closing of the inquiry did not depend solely on the diligence of the authority responsible for conducting it - the public prosecution service - on account of the reliance on measures implemented by third parties (expert reports, requests for judicial assistance by other countries, and so on).
Furthermore, in the case under consideration it was a question not of the defendants' access to elements of the case-file considered necessary to an appropriate defence of their rights, but of the possibility of having knowledge of the inquiry as a whole. The normative criterion applied in the challenged decision was therefore held to be constitutionally inappropriate regard being had to the possible adverse effects on the protection of other constitutionally recognised interests covered by other forms of confidentiality (in particular protection of the private lives of third parties, since the definitive sacrifice of this interest was neither necessary nor proportionate for the purpose of protecting the interests of the party requesting access).
One judge voted against since he thought the decision, based on a different assessment of proportionality, had censured the legislature's assessment of proportionality. It was for the Constitutional Court to determine not which rule was better, but solely whether the rule established, as it had been laid down, was or was not in conformity with the Constitution.
Through this vote, with the professed aim of giving a minimum substance to the confidentiality of inquiries and investigations, the majority had in the end granted maximum protection to the principle of criminal investigation, at the inquiry stage, to the detriment of the effectiveness and efficiency of the constitutional guarantee that criminal procedure must offer defendants all the necessary guarantees for their defence.