V.R. v. France

The author of the communication is V.R., a national of France, born in 1972. She claims that the State Party violated her rights under article 14 (1) and 17 of the Covenant. The Optional Protocol entered into force for the State Party on 17 May 1984. The author is represented by counsel.

In 2015, the author learned that she was the subject of a police record in France known as a “fiche S” (“S” standing for “State security”). The fiche S is one of the categories of police records used primarily by intelligence and investigative services (police, gendarmerie or Directorate General of Internal Security). The issuance of a fiche S allows for the monitoring of individuals who have not been charged with any criminal offence but who, through their activities, may at some point pose a risk to public order or State security. As the author is a quiet bank employee with no history of involvement with the police or the justice system, the issuance of such a file seemed illogical and misguided to her.

On 9 March 2015, the author submitted a request to the National Commission for Information Technology and Civil Liberties for access to the file relating to the centralization of internal intelligence for national security and national interests known by its French acronym CRISTINA, held by the Directorate General for Internal Security of the Ministry of the Interior. On 17 March 2015, the author was informed, by a letter from the Chair of the Commission, that a Commission member had been appointed to investigate the matter and make any adjustments necessary.³

3. This procedure is provided for by the provisions of article 41 of Act of 6 January 1978 on information technology, data files and civil liberties. ↩

On 3 April 2015, the Chair of the National Commission for Information Technology and Civil Liberties informed the author that all checks had been carried out and that the procedure had been completed, but that no further information could be provided to her, in accordance with the combined provisions of article 41 of Act No. 78-17 of 6 January 1978 on information technology, data files and civil liberties and article 88 of its implementing decree, No. 2005-1309 of 20 October 2005.

On 2 June 2015, the author filed an application with the Administrative Court of Paris to set aside the decision of the Minister of the Interior for abuse of authority, communicated by letter from the Chair of the National Commission for Information Technology and Civil Liberties – in other words the Commission’s decision refusing her access to data likely to concern her in the CRISTINA automated data file of the Directorate General of Internal Security – and to order the Minister of the Interior to provide her with the information concerning her. The author complained that the Commission, in its decision, had failed to uphold the adversarial principle or comply with the obligation to state the reasons on which a decision is based and had summarily rejected her request without seeking to determine whether each piece of information concerning her was indeed relevant to State security, defence or public safety.

On 25 January 2016, the President of the Administrative Court of Paris forwarded the author’s application to the Council of State. On 7 December 2016, the Council of State rejected the application on the grounds that the specialized panel dealing with the case concerning the refusal of access to data relating to an individual who claims to be mentioned in a file referred to in article R. 841-2 of the Internal Security Code had the power: to verify, outside of adversarial proceedings, whether or not the applicant was mentioned in the disputed file; to assess whether the data contained therein were adequate, proportional and relevant to the file’s intended purposes; to reject, where appropriate, the applicant’s submissions without further clarification; to inform the applicant, where appropriate, that the personal data concerning him or her were inaccurate, incomplete, ambiguous or out of date, or that the collection, use, communication or retention of such data was prohibited, but without disclosing any information protected by national defence secrecy; and, where appropriate, to restore the legality of the file by deleting or amending the disputed data as necessary. In this case, the Council of State examined the relevant evidence and concluded that the author’s application should be rejected.

The author maintains that she has exhausted all domestic remedies and has not submitted the same matter for examination by another procedure of international investigation or settlement.⁴

4. See para. 7.3. ↩

The author argues that the State Party violated her rights under article 14 (1) of the Covenant. She was subjected to an arbitrary assessment by the judges, as it was impossible for her to know what considerations were taken into account by the National Commission for Information Technology and Civil Liberties and the Council of State in rejecting her request for access to information concerning her. This impossibility amounts to depriving her of any opportunity for contentious proceedings. Furthermore, the failure to provide any justification is, by its very nature, a violation of the principle that judicial decisions must be reasoned.

Through the decisions in question, the State Party also violated the author’s rights guaranteed by article 17 of the Covenant. The collection of personal data in a DNA database that could be used in the future for the purposes of criminal investigation is sufficiently intrusive as to constitute interference with privacy under article 17 of the Covenant. In several cases against France, the European Court of Human Rights has found that there has been interference when the personal data of a person subject to the jurisdiction of the courts are recorded in a secret file⁵ or in a file whose existence is not secret, but to which the person has been denied access because of the secrecy of the information it contains.⁶

5. Leander v. Sweden, application No. 9248/81, Judgment, 26 March 1987. ↩
6. For example, Gaskin v. the United Kingdom, application No. 10454/83, Judgment, 7 July 1989. ↩

The author does not dispute the legitimate purpose of collecting personal data and the secrecy associated with it. However, she wonders whether the interference is proportionate and necessary in a democratic society given the absolute impossibility for persons subject to the jurisdiction of the courts to verify for themselves the relevance of the information and its content. The notion of arbitrariness includes factors such as inappropriateness, injustice and a lack of predictability and due process of law, along with the failure to uphold the principles of reasonableness, necessity and proportionality with regard to the legal provision in question.

In this case, the author has had no involvement with the police or the courts. Her record shows no convictions of any kind, and nothing in her professional or personal life suggests that she could pose any threat to public safety or national security. However, the French authorities and courts ruled that her request for access to the disputed file should be refused on the grounds that the information concerning the author was contained in a file held by the Directorate General of Internal Security that was relevant to State security, defence and public safety. No case-by-case assessment was carried out. On the contrary, it was merely noted that the file in question had an overall secret purpose, without looking into whether the information concerning the author was relevant to State security, defence or public safety.

In its observations of 7 June 2022, the State Party maintains that the complaint is inadmissible and unfounded. The author has not sufficiently substantiated her claims and has not exhausted domestic remedies. She only asked the Council of State to overturn the decision to deny her access to the CRISTINA file. She never submitted a request to this court to verify that no intelligence techniques had been unlawfully used against her, in accordance with article L-841-1 of the Internal Security Code. The application before the Administrative Court of Paris and the references in the decision of the specialized panel of the Council of State show that the author never raised before the national courts any issue of noncompliance with the provisions of articles 14 (1) and 17 of the Covenant, nor did she refer to any failure to comply with equivalent provisions or stipulations (such as articles 6 and 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights)). Furthermore, although the author requested the court to issue an interlocutory decision requiring the National Commission for Information Technology and Civil Liberties or the Minister of the Interior to produce all information on the nature of the documents that had been withheld and the reasons for refusing to disclose them, she did not at any time contest the legal proceedings brought before the specialized panel of the Council of State.

After referring the matter to the Committee, the author undertook further domestic proceedings. On 25 April 2020, she once again referred the matter to the National Commission for Information Technology and Civil Liberties to exercise her right of indirect access to the files of the Directorate General of Internal Security, the Directorate General for External Security and the Directorate of Defence Intelligence and Security. On 21 December 2020, the Chair of the National Commission for Information Technology and Civil Liberties replied by letter that investigations into the files in question were ongoing and that, with regard to the CRISTINA file of the Directorate General of Internal Security, a judicial officer of the Commission had carried out the necessary checks, and the combined provisions of article 118 of the Act of 6 January 1978 and article 143 of its implementing decree of 29 May 2019 did not allow for further information to be provided.

In an application filed on 17 February 2021, the author requested that the specialized panel of the Council of State overturn the decision of the Minister of the Interior denying her access to data that may be contained in the CRISTINA file and that the Minister be ordered to disclose the data to her.

On 4 February 2022, the Council of State rejected the author’s application after reviewing the evidence provided by the Minister and the National Commission for Information Technology and Civil Liberties. According to the decision of the Council of State, its examination had revealed no illegality and had fully addressed the author’s request insofar as it related solely to the file held by the Directorate General of Internal Security of the Ministry of the Interior (the CRISTINA file), which fell within the jurisdiction of the specialized panel and contained only data relating to State security.

In her comments of 31 January 2023, the author reiterates her position and addresses the State Party’s arguments.

In its observations of 20 October 2023, the State Party reiterates its arguments, elaborates upon them and addresses the author’s comments.

Before considering any claims contained in a communication, the Committee must decide, in accordance with rule 97 of its rules of procedure, whether the communication is admissible under the Optional Protocol.

In accordance with article 5 (2) (a) of the Optional Protocol, the Committee must ascertain that the same matter is not being examined under another procedure of international investigation or settlement.⁷ The Committee recalls that “the same matter” under article 5 (2) (a) of the Optional Protocol refers to the same claim concerning the same individual, as submitted by that individual, or by some other person empowered to act on behalf of the individual, to the other international body.⁸

7. The Committee notes that the State Party has entered a reservation concerning article 5 (2) (a) of the Optional Protocol. The reservation states that the Committee “shall not have competence to consider a communication from an individual if the same matter is being examined or has already been considered under another procedure of international investigation or settlement”. ↩
8. For example, E.A. v. Türkiye (CCPR/C/142/D/3668/2019), para. 7.2. ↩

On 23 February 2022, the author submitted an application to the European Court of Human Rights. The author invoked articles 6 (Right to a fair trial), 8 (Right to respect for private and family life) and 13 (Right to an effective remedy) of the European Convention on Human Rights before the European Court,⁹ referring to the same facts as those mentioned in the communication. The Committee observes that the author’s complaints under articles 6 and 8 of the Convention correspond to the substance of the complaints raised in the communication under articles 14 (1) and 17 of the Covenant. The application remains pending before the European Court.

9. Application No. 13001/22. ↩

In her application to the European Court of Human Rights, the author described the domestic remedies that had been exhausted following the submission of the communication to the Committee, as mentioned by the State Party in paragraphs 4.2 to 4.4. Although the current cases before the Committee and the Court involve two consecutive applications, respectively, submitted by the author to the National Commission for Information Technology and Civil Liberties, both were intended to allow the author access to the CRISTINA file of the Directorate General of Internal Security of the Ministry of the Interior. The Committee considers that the application before the European Court of Human Rights raises the same facts and issues as the application before the Committee. Consequently, because the same matter is currently being examined by a regional investigative body, the Committee concludes that article 5 (2) (a) of the Optional Protocol prevents it from examining the communication.

In the light of its findings, the Committee does not deem it necessary to examine other grounds of admissibility.

The Committee therefore decides: (a) That the communication is inadmissible under article 5 (2) (a) of the Optional Protocol;