Supreme Civil SS.UU. 3034/2011
privacy and right to defense.
The general rules relating to the processing of personal data undergoes exemptions and exceptions in the case of enforceable right to fair hearing, the modes of implementation are governed by the Code of ritual. 15/02/2011,
privacy and right to defense.
The general rules relating to the processing of personal data undergoes exemptions and exceptions in the case of enforceable right to fair hearing, the modes of implementation are governed by the Code of ritual. 15/02/2011,
Civil Cassation, United Sections, 8.2.2011, n. 3034
Conduct of case
an action brought pursuant to Legislative Decree no. 196 of 2003, Art. 152, AG, after having said to be part of a divorce proceeding is pending before a court in Milan to be the occasion was witnessed by the lawyer. ZEV, while the counterparty CLEM was assisted by the lawyer. BDPA and FA, which during the proceedings the magistrate with Order reserved admitted evidence of witnesses and order the production of bank records applicant refers to it in five bank branches, as well as those relating to a credit card: American Express, the lectures at the Catholic University and Bocconi University in Milan, models 750 U 2004 - 2007; that the defense of the party, not news of the request sent by the applicant directly to the institutions concerned in the spontaneous fulfillment of the order, dated 09.01.2008 was served on each copy of the first page of the transcript of the hearing of 12.12 .2006, a copy of the minutes of proceedings of 12.5 and 6.11.2007, the copy of the order of 28.11.2007, that these initiatives would have been illegal under various aspects, in particular the fact that the minutes of the hearing would have contained sensitive data on the health of this applicant, as those used by the holders of their treatment (in this case the lawyer. and A. BDP) with only the adoption of measures to protect the person concerned, in this case is not taken, now, therefore, asked the court to order the defendants would have to pay a provisional basis, subject to compensation, equity or otherwise, resulting from severe depressive form that would be manifested as a result of alleged violazione.I two lawyers represented the defendants. BDP and A were set up, claimed to have heard of the capture of documents by the data after the request for notification of the order of presentation and that the applicant's request was not justified in three ways: a) that the rules on the protection of personal data would exclude from the discussion on those related to judicial treatment b ) that would not require your consent to the processing of data, when it comes to asserting his right to trial; c) that the alleged harm would insussistente.Il court rejected the claims, holding that there was no infringement of rules concerning personal data in the conduct of the party in a civil trial, he had served on a third measure which order of presentation of documents issued by the judge during the judges noted in particular processo.In regard, that production order document was addressed to the applicant by delegation to the defendant (who apparently had called the measure ", p. 6) for its notification the institutions concerned, and that the proposed ordinance made by the spontaneous fulfillment applicant should be interpreted as a simple request for replacement of the counterparties in the on arranging the necessary notifications to banks, and then as an instance of taking the burden on his own Executive entrusted to others, whereas, in other words, if the 'A. have paid for the execution of the order as proposed "would not have behaved very differently then the conduct complained of "(p. 7), that would still not apply the rules relating to the processing of personal data, having been mentioned in the same sector (of Justice) delivered from the rules laid out in general, which ultimately would be no proof of the existence of damage A. risarcibile.Avverso the decision appealed to the Supreme Court assigned to seventeen grounds, which resisted with BDP and A. controricorso.Entrambe parties filed the case was finally decided the outcome memoria.Successivamente public hearing of the 7.12.2010.Motivi decision1 - A. With the grounds of appeal has denounced respectively: 1) invalidity of the sentence for violation of Article. 112 cpc arising from the fact that the court, when considering the issue brought before it, failed to consider the profiles relating to the alleged violation of the right to the protection of personal data arising from the order and full notice of the proceedings of the hearing, that's vice versa would formed "the basis of the action and the same applied for", 2) lack of reasoning in terms that the ruling did not take into account the issue on the protection and the limits of the protection of personal data, thereby circumventing the motivation substantial object of the process, 3) violation of the law in relation to the claim notice to the third holder of the documents of the entire order of presentation and contemporary denial of the obligation to have recourse to authentic extracts for the purpose of such notification; 4) violation of the law with respect to the claim that the chancellor who had been notified to the various services concerned should have addressed the entire order in which eight separate orders of performance, and this without any verification of the effect of this outcome on the management of personal data and sensitive and it would be wrong to claim that in disputes relating to separation and divorce notifications indiscriminate acts and documents would be of widespread and uncontested application, 5) lack of reasoning in relation to the assumption that the applicant would still proceed with full notification the third order of presentation and the chancellor should have notified to each recipient each order of presentation contained in the Order, is not relevant, under the appearance indicated that the number of orders had been issued with the adoption of a single document; 6) lack of reasoning with respect to the claim that in the process of separation and divorce would be established to run the practice alerts "pervasive and pervasive" as the present one, the relief it would be wrong and that wrong would complement the defect " administrative law known as the misuse of power "; 7) violation of the law expressed in relation to proceedings for which the data processing function the respondents was carried out for reasons of justice, which would make legal their actions and this opinion would be defective in the two aspects that the regulations would give to the courts, not the lawyers, the ownership of the data processing and otherwise said the owner would be required to comply with the requirement laid down in legislation to protect the confidentiality of personal data and sensitive venendosi otherwise result in unreasonable absolute immunity with respect to obligations related to the conduct of the process; 8) violation of the law because the D. Legislative Decree No. 196 of 2003, Art. 47, contains exceptions to the application of the rules dictated in general, not among the exceptions that would be listed on notifications in the activity of justice, the exceptions would be mandatory and this would mean, "contrary to" the full applicability of other provisions of Legislative Decree No 196; 9) violation of the law for breach of Legislative Decree no. 196 of 2003, Art. 11, comma 1, lett. a) and d), which requires that personal data must be "treated legally and fairly" and they must be "relevant, complete and not excessive in relation to the purposes for which they are collected and further processed", which is not you would have occurred in this case, 10) violation of the law in relation to denied the right to compensation, which should have been vice versa state because of the illegality of the conduct put in place by the defendant and the resulting civil liability that would result; 11) violation of the law (Legislative Decree no. 196, 2003, Art. 17), for failure to assess the case in relation to the measures and the measures that could be taken as a guarantee of an individual (such as the use of authentic extract), which would be apparent omission giving rise to the offense and which would then cause the damages, 12 ) violation of the law with regard to the statement "absolute lack of any evidence on the existence of damages payable" on the contrary, there was specific complaint in this regard, with specific reference to the injury of the fundamental values \u200b\u200bof the person, the state of depression which would be chargeable leaving the occupation and the aggravation of the disease as an effect due to the aggressive behavior of the respondents, the damage caused to the image of ' knowledge been the recipients of the order of presentation of his dealings with the IRS and its alleged strategy (removal from the register to affect the economically ex-wife and children) in the context of family relationships, greater uncertainty professional future for its position as a university teacher is not stable; 13) violation of the law on the grounds that the court would place based on the decision two opinions of the Guarantor for the protection of personal data is not produced by the parties, and therefore can not be used; 14) failure to state reasons for judging the place based on the decision two opinions of the Guarantor referred to sub 13), opinions , if considered their proper (and contentious) acquisition, ye say not relate to the external data and do not apply to justify an exception to the general rule; 15) violation of the law for failure to compensate for the costs of litigation, which should have been vice versa be declared since the new issue, concerning the respect of fundamental rights, the proposal for more from the weakest part of the report; 16) violation of laws concerning the inviolable human right "to privacy," violated the law established the prevalence of the civil code and civil procedure up to those provided in Legislative Decree no. 196, 2003; 17) violation of the law with reference to the privilege granted by the lawyer to avoid the provisions contained in Legislative Decree no. 196 of 2003, which is in conflict with the regulatory principles contained in higher-level systems, and the principle of constitutional equality garantito.2 - Look at the Board that the issues underlying the alleged erroneous decision under appeal, as seen from an examination individual reasons, relate to: a) to claims of infringement proceedings under Article. 112 cpc, because it would not be caught, processed and reasoned profile of infringement of privacy (the first and second plea), b) the challenged correct execution of the notification of the order of presentation in its entirety (third, fourth, fifth, sixth, eighth, ninth plea ), c) incorrect identification of the holder of the processing of personal data subject to judicial review in the office at the hearing the case in which the deficiencies would have occurred, rather than the legal counsel for the party in whose interest they might have data processing (seventh ground), d) denied the configurability of the right to compensation (tenth, eleventh and twelfth grounds of appeal), e) the seals use, for the decision, documents and products not mentioned by the parties (the thirteenth and fourteenth reason), f) to condemn it to the applicant pay the costs, which would be contrary to compensate (fifteenth reason) g) to the lesion the inviolable right (to privacy), that recognized by supranational legislation (sixteenth and seventeenth reason) .3 - If those mentioned under 2 are, therefore, be to matters before the Court, it should be noted that some of the reasons for censorship are ineligible for breach of art. 366 bis cpc, then in force, as on the other hand also formally objected by the fact that Article controricorrenti.Ed provided that the picture of each ground, in the cases referred to. Cpc 360, subsection 1, nos. 1, 2, 3 and 4, it should be concluded with a question of law, and in the provisions of art. Cpc 360, subsection 1, No 5, but should contain a clear indication of the fact in issue, the requirements that have been consistently interpreted by this court in the sense that, in the first case, the applicant should proceed to laying down a principle of law relating specifically to the decision other than to place basis of the contested decision and, second, should single out a moment of representative summary of the relevant facts in relation to which the reasoning takes carente.Tali characteristics are not found in the first, in the second, in the fifth, sixth, ninth and tenth reason, which basically does not envisage a shared assessment of the substance in relation to the evidence obtained and therefore are inammissibili.4 - Coming then to the individual issues identified above, and those deemed ineligible relating to alleged breaches of the law of the case for lack of correspondence between the requested and delivered (art. 112 CCP) - derived in terms of perception of the failure on the invasion of privacy - for faulty wording of the question of law (the first reason ) and time of synthesis (second reason), the other detects it is unfounded for the reasons below considerate.4 - 1. The crux of the dispute is identifiable in the alleged harmfulness of notification of an order of presentation made in a civil trial in its entirety, in accordance with the instructions of the judge, in terms of violation of rules laid down to protect riservatezza.L 'order of appearance as that implemented in accordance with the instructions of the judge, was in fact executed by the party delegates that he had called for the issue, with the notification of the measure and some record of the hearing, in those reports would be referred to data Personal and sensitive today's applicant, the notification would have been executed in relation to different recipients, each of which asserted holder of the document you intend to acquire a whole, the effect would be achieved, therefore, would have been identifiable nell'illegittima dissemination of personal data, which conversely would have to remain confidential and that they should be treated in accordance with the regulations on privacy. The question that arises, therefore, be identified in the identification of the relationship between the rules dictated by the code of ritual and that resulting from the law on the protection of personal data and methods of their coordination when, as is assumed in this case, not coincidenti.Al regard, it should first be noted that the Legislative Decree no. 196, 2003 (Privacy Code) reads as follows: a) that excludes the right to object to the processing of data by the data provided by art. 7, where the processing takes place for the exercise of the right in court (Article 8 paragraph 2 letter. E), b) the processing of personal data does not require the consent of the cases where the processing takes place to defend a right in court, and if the data are processed exclusively for said purposes and for the period necessary therefor (Article 24), c) that the ownership of the processing of data in the judiciary must be identified in part of the Ministry, the CSM , to the courts, with reference to their respective powers (Article 46), d) is not applicable in its the general rules on the processing of personal data, where the same are collected and managed as part of the process (art. 47). The relevant exceptions to the general rules which reference is now made, therefore, constitute clear evidence of the peculiar importance attached by the legislature to right to act and to defend himself in court, a right constitutionally guaranteed, the legitimate purpose of the exceptions than the ordinary regime, in order to ensure effective protection. In this sense the other hand, this Court has consistently expressed in non-frequent decisions on the matter, with which it affirmed its derogabilità the aforementioned rules protecting the confidentiality of data personal when its processing is deployed to defend a legal interest, and in so far as is necessary for the protection of that interest (09/15327 C., C. 09/3358, 08/12285 C. , C. 08/10690, C. 03/8239, the latter in particular with reference to the dispute involving the alleged breach of a privacy protection would be determined by a garnishee order, ie from one form provided for enforcement of the order). In other words, must be considered that the general rules relating to the processing of personal data is affected by exemptions and exceptions in the case of enforceable rights of defense, whose implementation are governed by the Code of rito.Ciò means that in such a place have to find different composition requirements (protection of the confidentiality and proper execution of the process), if inconsistent, as a further consequence, that the rules governing the process must be given the special nature than those contained in the code of privacy and against them, then, in case of conflict, must prevail. It is true, as suggested by the applicant, that the rules laid down in the code of ritual, enacted in time before the entry into force of the privacy code, has ignored the issues related to privacy protection. The proof is in fact contrary to the recent intervention the amendment of the Articles. 138 and 140 of the CPC, (Legislative Decree no. 196, 2003, Art. 174) in terms of service (which on one side, favoring the hypothesis of the delivery to the recipient's own hands and, secondly, provide placing it in a sealed envelope in the case of service not in their hands), attention in this regard, however, shown by the legislature to dictate the rules in terms of performance (Articles 210 and 118 CCP), which make the issue of order on the dual requirement of its indispensability to the knowledge of the facts and the absence of serious damage to the extent that the subisce.Partendo then the premise that the provisions governing the process are of special provisions on confidentiality, than those contained in the general code of privacy, and that the former are not subject to such additions as having reflected the legislature's already cured and being relevant in this regard after the corrective action after it considers necessary, further aspect to consider is that on accordance with the manner of execution of the notification of the order of presentation in question to the regulatory model, which question must be answered in fact positiva.Ed art. 76 disp. att. Code, provides that those papers and documents in the files of the office can be consulted by the parties that may acquire a copy; art. 134 Code, provides that in case of an order issued out of court (as here) it was written in the bottom of the report or on a separate sheet, a fact that the legitimate issue of certified copies of both documents, art. 95 disp. att. part of the CCP imposes the obligation to notify the entire measure; art. 137 of the Code of Civil Procedure requires that the notification should be made by delivery of certified copy of the act to notificare.Deve therefore concluded that it is theoretically legitimate use of personal information of others in order to justice, and if the act case that contains it appears to have been put in place in compliance with the Code of ritual is not configurable to any violation of the right species privacy.Nella the notifying party has operated in compliance with the rules dictated Rite in the code, and this is sufficient to exclude the ipotizzabilità the alleged infringement. It must also be in regard, that in light of the clear provisions of Legislative Decree no. 196 of 2003, Art. 46, the data controller of personal data should be identified in the office prosecuting authority, and then the investigating judge that in this case represented him, a judge has ordered that in the above sense delegating the requesting party is simply the implementation of what he established . to want to opine otherwise you should consistently held that, despite a court order the data controller of personal data in the preliminary investigation and despite the undeniable accordance order that the rules in force, the party delegated to run, in his new capacity as owner of the data acquired as a result of the judge's ruling, that fact alone has the burden of verifying compliance with the principles of the concrete proper, relevant, not excessive, which must be implemented in the processing of personal data (Legislative Decree no. 196, 2003, Art. 24, paragraph 1, lett. f, and, in law, 09/15327 C., C. 09/3358, C 08/12285, with reference to Law No. 675 of 1996, Art. 9 letters. a) and d), then in force). The power of review against the drafter of the court decision implicitly given the physiological consequences which can of any non-compliance with respect to their order, with the related effects of sanctions on the procedural level (NULL, ineligibility, disqualification) for non-performance of the act within the time specified. Also setting hours outlined also follows a negative impact on the right of defense of the services concerned for the performance part, either forced to suffer the adverse consequences related to violations of the law on protection of personal data purely procedural or those arising from uneven enforcement of ' order of the court. On the other hand is not even true that this idea (the one that is not sindacabilità of the decision of the investigating judge on the stage of execution) follows a limitation and a compression of the right of defense of the complainant the violation of the rules governing data protection personali.Eventuali demands aimed at ensuring adequate protection on this point may well (and indeed on the basis of the above should) be proposed the investigating judge (which is not the result have occurred in this case), that during the enactment of the measure could take any action deemed appropriate to riguardo.Come final remark on this point does not seem useless then consider that the applicant has not shown the content of documents alleging the improper transmission, omission which does not allow a breach occurs in order duties of fairness, relevant, not excessive (to be made on the basis of a balance between defense needs and those of confidentiality) in the treatment of personal data, and therefore determines the configurability of a defect of lack of self-sufficiency in this respect. 4 - 2. The unfounded allegation concerning the alleged illegality of the order of presentation in its entirety (third, fourth and eighth reason) then determines the absorption of complaints concerning the alleged incorrect identification of the owner of the Personal Data (seventh plea ), denied the right to compensation while on time indicated (eleventh and twelfth reason), use has been made for the purpose decision, documents and products not mentioned by the parties (the thirteenth and fourteenth reason), the compatibility of the decision affirmed the principles set forth in international and supranational inviolability of the right to privacy (sixteenth and seventeenth reason) .4 - 3. As for the disputed ruling on costs, which were erroneously not included, is sufficient to note here that the decision on that point is in line with the provision of the law that charges fees to the unsuccessful, while the possible compensation of the same shall be referred to discretion of the trial judge that in this case, with final decision here, has decided not to use of that power. 5 - concluded the appeal should be dismissed, with offsetting the costs of the proceedings concerning, given the novelty and the sensitivity of the issues proposte.PQMRigetta the action and compensate for the costs of legality.
Extract from: http://www.diritto-in-rete.com/sentenza.asp?id=1021
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