Antunes Rocha v. Portugal | 2005

Greater protection of privacy after a civil servant was spied on to pass NATO security clearance

...the Court finds no definition [in Portuguese law] . . . of the type of measures that may be involved in an investigation . . . for the purpose of granting security clearance.

Judgment of the European Court of Human Rights, October 2005

Background

Gracinda Maria Antunes Rocha would never have signed the contract for her new job had she known that she would be spied on to pass security clearance.

In May 1994, Gracinda took up a temporary job at a government agency. As a new starter, she had to fill in and sign some documents, including one asking whether she wanted to handle national security matters relating to Portugal’s membership of NATO.

Several months later, Gracinda found out that unknown people had watched her home and asked her neighbours questions about her personal life – like whether she had any lovers, debts or problems with alcohol or drugs.

Horrified, Gracinda demanded an explanation from her boss. He told her that she had been investigated because of the sensitive work she might have to do.

Gracinda claimed that she asked, at that point, for her family not to be investigated. Her boss had apparently agreed. However, Gracinda soon found out that the investigation continued anyway.

She resigned.

Gracinda then made a criminal complaint. Prosecutors initially told her that no crime had taken place, but she persisted and managed to get a case opened.

A Portuguese judge ultimately dismissed Gracinda’s claims in 2000.

Judgment of the European Court of Human Rights

The European court ruled that Portugal had breached Gracinda’s right to privacy.

In the court’s view, Portuguese law was not clear about what could be done as part of an investigation for security clearance. Crucially, neither the law nor the documents Gracinda signed mentioned the possibility of surveillance.

The court also found that Portugal had breached Gracinda’s right to a fair trial because of the long delay in dealing with her case.

Follow-up

The Portuguese authorities had already destroyed the file they held on Gracinda before the European court delivered its judgment in her case.

In 2007, Portugal brought in a new law giving greater privacy to people being investigated for security clearance. It allowed victims of privacy breaches to get justice, whether it be compensation or holding responsible officials to account through a criminal or disciplinary sanction.

Additional information

European Court of Human Rights judgment Antunes Rocha v. Portugal (2005) (in French, Albanian, Portuguese and Croatian)
Resolution of the Committee of Ministers| CM/ResDH(2013)230

Themes:

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