Judgment 36705/16

Applicant name MARGAR
Applicant type Natural person
Number of applicants 1
Application no. 36705/16
Date 20/06/2023
JudgesPere Pastor Vilanova, President,
 Georgios A. Serghides,
 Darian Pavli,
 Peeter Roosma,
 Ioannis Ktistakis,
 Andreas Zünd,
 Oddný Mjöll Arnardóttir
Institution Court
Type Judgment
Outcome Art. 8 Violation
Reason Not necessary (rights and freedoms others; prevention disorder and crime)
Type of privacy Procedural privacy; informational privacy
Keywords Publication personal data suspect; procedural requirements not respected; data quality; even if; in abstracto; exhaustion domestic remedies
Facts of the caseLate 2015, the applicant was arrested in the context of a police investigation, along with other six persons. She was charged with various serious crimes. The applicant was released from detention pending trial on condition that she did not leave the country. The local department of public security asked the public prosecutor to publish the personal data and photographs of the accused, in order to protect society from similar actions, and to investigate whether there were other cases in which the accused had participated. The prosecutor did so after the court approved of the conduct. At the end of the main investigation, the applicant was convicted and sentenced to eleven years and six months’ imprisonment without suspensive effect.
AnalysisThis case is relevant for a number of reasons:
1. There are two preliminary issues. The first is that the applicant did not respond to the questions of her lawyer on whether she wanted to continue her complaint. It was thus unsure whether she did, while Article 37 ECHR makes clear that the ECtHR can strike out a case when the applicant does not wish to pursue it. It is interesting that, instead of finding that there were no reasons to believe that the applicant no longer whished to pursue the application, the ECtHR side-passes this question. It points to the fact that the Convention also provides that the Court shall continue the examination of the application if respect for human rights as defined in the Convention and the Protocols thereto so requires.’ It uses an even if reasoning, holding thateven if the circumstances of a case lead to the conclusion that an applicant no longer wishes to pursue the application, it may continue its examination’ when this provision applies. The ECtHR considers that this provision applies because the publication of personal data by the prosecuting authorities in the context of pending criminal proceedings involves an important question of general interest not only for Greece but also for other Member States to the Convention. Apparently, which also arises from the ECtHR’s discussion of the substance of the case, the Court finds this matter of great importance. It reminds of a recent judgement on the publication of the Hungarian tax authorities, which published the names of people not having met their dues. It seems that the Court wants to weigh in against medieval pillory tactics through digital means. It is on this point however, that judge Serghides dissents. He finds that the applicant abused her right to petition. She was a convicted criminal and a fugitive after her conviction. ‘The applicant’s conduct is manifestly contrary to the purpose of the right of individual application as provided for in the Convention and impedes the proper function of the Court, which expects applicants to come before it with clean hands and with the higher standard of good faith (uberrima fides) and not to ask it to afford them Convention protection while they themselves are fugitives from justice and are in continuous violation of the rule of law (Dissenting Opinion, §4).’
2. The second preliminary question concerns the exhaustion of domestic remedies. The Court finds, contrary to what the government had suggested, that in so far as the applicant’s complaint is related to the prosecutorial order, at the time the applicant lodged her application with it, it had indeed not been unambiguously acknowledged in the domestic case-law that an individual could be compensated under the civil code for errors made by the judiciary. Although the government pointed to similar cases that were dealt with under that code, the ECtHR finds that those were not exactly the same, so that the applicant did not need to exhaust this remedy. It is on this point that judges Roosma and Zund dissent. ‘The majority considered that at the material time it had “not been unambiguously acknowledged in the domestic case-law” that a person could be compensated for an alleged violation in a case like the present one. This may well be so, but in our view such a standard for assessing whether the domestic remedies have been exhausted is far too high and neglects the principle of subsidiarity. The applicant acknowledged that after she had lodged her application with the Court, the Supreme Administrative Court had stated unambiguously that the liability of the State was engaged by acts and omissions of judicial bodies – something that, according to the Government, had already happened at an earlier stage. Leaving aside the question whether the domestic case-law allowed for a distinction to be made between the orders of prosecutors and the acts carried out by the police to execute such orders, we note that even in respect of complaints against prosecutors, this consolidation of domestic case-law would have never come into being if all potential victims in cases like the present one had forgone any attempt to apply to domestic courts and turned directly to the European Court of Human Rights. The acceptance of such complaints not only contributes to the excessive caseload of the Court but also has adverse effects on the development of domestic case-law (Dissenting Opinion, §5).’
3. As to the legitimate aim, it is interesting to see that the ECtHR does not find that the publication of the personal data of the applicant was pursued in light of the prevention of disorder and crime, which would have perhaps been most obvious, but that it aimed at protecting the rights and freedoms of others. The publication was clearly aimed at preventing the applicant from continuing to perform criminal activities and harming citizens as a consequence, but it seems like this would have typically been something that falls under the ground of preventing disorder and crime. (§52)
4. The Court has for a long time held that it is neither a court of first, nor one of fourth instance. Both principles, however, are increasingly undermined. As discussed above, the ECtHR increasingly finds that applicants do not need to exhaust all domestic remedies, either because of urgency, because they are not effective or even because applicants could reasonably think they were not effective, though in reality they were. In addition, the ECtHR increasingly assesses the quality of law or the Conventionality of domestic legal systems as such, in abstracto, which is a task of the ECtHR rather than domestic courts. This also plays out in this case, because the ECtHR essentially takes fault with the legal system as such (which does not require suspects to be informed of the publication of their data on beforehand), not with the way in which domestic authorities applied that legal regime. This means increasingly, the ECtHR is acting as a court of first instance. In addition, its view that it is not a court of fourth instance, reviewing the whole case anew, but only assessing whether there has been a human rights interference, is also undermined by the fact that the ECtHR increasingly focusses not on the substance of a case, but on the procedural requirements implicit in the substantive provisions in the ECHR. This means that it assesses whether the domestic authorities’ decision-making accorded to the various standards set out by the Court, such as, but not limited to, giving the applicant a right to be heard, adequately taking into account her interests and arriving at a decision fairly and swiftly. This often precisely the type of review done by supreme courts at national level. In this case as well, the ECtHR does precisely that, which is additionally remarkable because it has found that continuing this case was desirable in order to give more legal guidance, not only to Greece, but also to other countries, which intuitively would lead to ECtHR to provide guidance on a substantive issue, rather than a procedural one.
5. However, that is precisely what the Court does. The ECtHR points out that the applicant was not informed officially of the publication of her photograph and personal data, either before the publication or afterwards, but was informed of it accidentally through her friends. Although this publication was in accordance with the law, was necessary in a democratic society and served a clear public interest, and although a court order had been obtained, the Court nevertheless considers that the applicant should at least have been notified prior to the dissemination of her photograph and the details of the pending criminal charges. It also points out that the applicant had no right to appeal against the prosecutor’s order for the publication of her photograph and personal data, which meant that she had no opportunity either to be heard prior to the decision being taken or to apply for a review and put forward her arguments after the decision was taken. Roosma and Zund disagree on this point: ‘We would point out that the criminal case concerned the defrauding of owners and prospective buyers of real estate by the defendants, who had pretended to be estate agents. It was an evident matter of urgency to warn the public about persons who had been charged with such offences and to urge possible further victims to come forward. The publication took place when the applicant had been released pending trial (§3)’.
6. Finally, the ECtHR does point to a substantive problem, which it takes from the EU’s data protection regime. It finds that data concerning criminal conduct is sensitive personal data. In this case, the applicant argued that initial publication of data of her and her co-conspirators was too general and misleading, and did not make clear on which accounts she had been chared. This, the ECtHR finds, is in conflict with the data quality principle as enshrined in the General Data Protection Regulation.
Other Article violation?No violation 13 ECHR
Damage awarded  Holds, by six votes to one, that the finding of a violation constitutes in itself sufficient just satisfaction for any non-pecuniary damage sustained by the applicant.
Documents Judgment