Judgment 44033/17

pplicant name D.H. AND OTHERS
Applicant type Natural persons (criminal)
Number of applicants 4
Country North Macedonia
Application no. 44033/17 
Date 18/07/2023
Judges Arnfinn Bårdsen, President,
 Jovan Ilievski,
 Egidijus Kūris,
 Pauliine Koskelo,
 Lorraine Schembri Orland,
 Frédéric Krenc,
 Diana Sârcu
Institution Court
Type Judgment
Outcome Art. 8 Violation (prevention of crime)
Reason Positive obligation
Type of privacy Procedural privacy; informational privacy; bodily privacy
Keywords Prostitutes; blood test; photograph
Facts of the caseLarge group of sex workers was arrested on the grounds of suspicion of spreading transmissive diseases. Four of them go to the ECtHR. They suggest that they were subjected to medical (blood) testing, which they claim violate their bodily integrity. They also complain about both lacking medical treatment for, inter alia, the consequences of a heroin addiction, and of a lack to food, water and a toilet. Finally, they suggest that their photographs were taken and published on the Ministry of Interior’s website, which they claim violated their right to privacy, which also holds true for alerting the press about their arrest, which led to media coverage.
AnalysisA number of points stand out from this case:
1. The applicants complain that they were held in custody for longer than the official records show, but the Court finds that such was not convincingly demonstrated.
2. As to the alleged lack of access to food, water and a toilet, the ECtHR notes that the two parties provide a different description of the course of events. It finds that because the applicants were in a weak position, the burden of proof ultimately lied on the government to show that the applicants were treated well. Also, it points out that the national court did not adequately assess the arguments of the applicants. That is why it finds a violation of Article 3 ECHR.
3. As to the lack of adequate medical treatment, the Court believes that one applicant refused medical treatment and that two another applicant did not need medical treatment. Thus, there has been no violation of Article 3 ECHR on this point.
4. As to Article 8 ECHR, the applicants complained that blood samples had been taken while they were in police custody. The ECtHR quickly established that there was a legal basis and that the interference served, inter alia, the legitimate interest of preventing crime. As to the proportionality of the measure, the Court points out that medical data is very sensitive, but that at the same time, there was a reasonable suspicion and a court order to take the samples. The ECtHR also notes that the taking of a blood sample is a very short medical procedure, which involves minor bodily harm, and there was no reason to believe that applicants’ personal data were retained or stored after they had fulfilled the purposes for which they were taken. Perhaps most interesting is that the Court does not conclude that consequently, the interference was in conformity with the conditions laid down in paragraph 2 of Article 8, but that the complain was manifestly unfounded, a conclusion which it normally only reaches with respect to complaints that have a very weak factual or legal basis.
5. As to the photographs, the applicants first contend that the police authorities had informed the media of their visit to the clinic, which had resulted in the taking and publication of the applicants’ photographs in certain media outlets. The Court accepts that the applicants were photographed by journalists while they were being transferred to the clinic and later those photographs were published by certain media outlets, together with articles relating to that incident. However, it also finds that it has not been clearly established that the police authorities were directly responsible for the taking and the subsequent publication of the applicants’ photographs. The distribution of the burden of proof and the level of persuasion necessary for reaching a particular conclusion are intrinsically linked to the specificity of the facts, the nature of the allegation made and the Convention right at stake, the Court reiterates. The applicants did not present prima facie evidence that the police officers had informed the media outlets of their transfer to the clinic and therefore the burden of proof had not been shifted to the Government, that is why no violation of Article 8 ECHR is established on this point.
6. The applicants also argued that the Ministry had published their photographs, which had been taken while they were in police custody, on its website. On this point, the Court finds that the court of appeal on the domestic level dismissed the applicants’ complaint, which leads it to conclude that the national courts failed in their obligation to protect the applicants’ right to respect for their private life against the infringement of that right by the publication of their photos on the Ministry’s website. Consequently, there is a violation of Article 8 ECHR on this point.
7. The complaint under Article 6 ECHR is dismissed.
Other Article violation? Article 3 ECHR; not Article 6 ECHR
Damage awardedEUR 3,300 (three thousand three hundred euros) to each of the applicants, plus any tax that may be chargeable, in respect of non-pecuniary damage;
Documents Judgment