| pplicant name | Negru |
| Applicant type | Natural person |
| Number of applicants | 1 |
| Country | Moldova |
| Application no. | 7336/11 |
| Date | 27/06/2023 |
| Judges | Arnfinn Bårdsen, President, Egidijus Kūris, Pauliine Koskelo, Saadet Yüksel, Lorraine Schembri Orland, Frédéric Krenc, Diana Sârcu |
| Institution | Court |
| Type | Judgment |
| Outcome Art. 8 | Arnfinn Bårdsen, President, Egidijus Kūris, Pauliine Koskelo, Saadet Yüksel, Lorraine Schembri Orland, Frédéric Krenc, Diana Sârcu |
| Reason | Violation |
| Type of privacy | Informational privacy |
| Keywords | Quality of law; arbitrary use of power |
| Facts of the case | Applicant and her farther had a dispute over a house. Her father issued criminal complaints against her. An investigation followed. She was brought in for questioning, was released, and subsequently summoned at the police station again. The police could not find applicant; her whereabouts were unknown to the police. She was in Italy at the time. After the farther brought new criminal complaints, the applicant claims her lawyer, by chance, noticed on the public noticeboard of the police station that the applicant had been indicted and was wanted by the police. A subsequent request by the lawyer to have access to the criminal file and to have the investigation in respect of the applicant discontinued was rejected by the police. The domestic court also rejected applicant’s claims as it concluded that she had failed to substantiate any violation of her rights under Article 8 ECHR. |
| Analysis | Several things are noteworthy in the judgement of the ECtHR: 1. Without it being disputed by any of the parties, the Court takes time to explain that putting up a photograph of applicant falls under the scope of the right to privacy. It seems to want to make clear that all elements of the EU’s data protection framework are also covered by Article 8 ECHR. Though this has been mostly clear for several years, it is the end of a long process in which the ECtHR at first did not include many of the aspects covered under the EU data protection framework, subsequently provided partial protection to the various data protection principles with reference to various provisions under the Convention, such as Article 6, 8, 9, 10 and 13 ECHR, then focussed primarily on Article 8 ECHR, but still maintained that data protection issues were only covered under the Convention when such interfered with the right to private life or secrecy of correspondence, and now finally, seems to want to undo any difference between the right to privacy under the Council of Europe’s legal acquis and the right to data protection under the EU regulatory framework. 2. One thing that used to be a dividing element between the two rights guaranteed by the two supranational European institutions was that the GDPR does not contain a de minimis rule, while the ECHR does. That meant that, inter alia, the ECtHR’s early jurisprudence concluded that the mere processing of a photograph as such, for example for the purposes of creating a driving licence, does fall under the protective scope of the Convention. More and more, the ECtHR is ignoring this de minimis rule, especially in cases that have a data protection element to it. That is also the case in this judgement. It can be wondered whether putting on the wall a photograph of applicant in one specific police station is significant enough to pass the de minimis test. The Court, however, does not substantially engage with this question, but moves to a second matter that the applicant also touched upon, namely the criminal record as such. ‘In the present case, the applicant’s photograph was posted on the public premises of at least one police station, with the intention of making it easily accessible to the public and of identifying the applicant as being wanted in connection with a criminal case. Furthermore, the Court notes that under Moldovan law, a decision to include someone on the list of wanted persons involved the processing of personal data in the national integrated automated information system for recording offences, criminal cases and offenders, had an impact on the person’s criminal record, and authorised border guards to arrest the person in question (§24)’. 3. Another point is worth briefly touching upon. Under the GDPR, it would have been questionable whether putting up a photo would fall under its scope. The GDPR covers electronic/digital processing of personal data and non-electronic/digital processing of personal data, but the latter only to the extent that such is structured (e.g. a handwritten criminal file on someone). Though taking photo would presumably be covered by the GDPR’s definition of automated processing, it can be wondered whether putting up a photo on a wall, which was the matter complained of in this case, would also. Should it be considered to be part of the criminal file, and thus fall under the definition of non-automated but structured data processing, or was this a type of processing that served a different purpose and was of a different nature than putting together a criminal file? The potential harmful effect of putting up a photo is not so much that police officers, that would have had access to the criminal file, would see it, but that citizens that entered the station would, while they have no access to that file. Thus, on this point, the ECtHR seems to be willing to provide more protection than might have followed from the EU’s data protection framework, while on the previous point (the application of the de minimis rule), it seems to set aside the more restrictive interpretation that would follow from the ECHR. 4. When assessing whether the interference accorded to the requirements of the second paragraph of Article 8 ECHR, the Court focuses on the quality of law criterion, which it recalls entails that national law must indicate the scope of any such discretion conferred on the competent authorities and the manner of its exercise with sufficient clarity, having regard to the legitimate aim of the measure in question, to give the individual adequate protection against arbitrary interference. The ECtHR finds that the applicant was declared wanted in 2010, one day after charges had been brought against her in her absence. While the applicant did not dispute that in 2008, she had left the Moldova for Italy, the Government failed to provide any evidence that the Moldovan authorities had genuinely tried to summon and to find the applicant from 2008 to 2010 prior to that decision. Furthermore, the Government did not inform the Court of any measures taken by the domestic criminal investigating authorities to identify whether the applicant had crossed the border during the relevant time or to summon her through her lawyer, who had been retained the entire time. Consequently, the ECtHR finds, even if the prosecutor had the authority to declare the applicant wanted, the quality of law principles were not respected in this case. This conclusion is further supported by the fact that the applicant was unable to obtain any further information about the decision and, subsequently, to obtain a review of it. In view of the lack of clarity of the procedures for the implementation of the existing rules and the flaws in their application, when declaring the applicant a wanted person the prosecutor enjoyed a discretion practically amounting to unfettered power, not being accompanied by a measure of protection against arbitrary interference as required by the rule of law. |
| Other Article violation? | No violation 13 ECHR |
| Damage awarded | (i) EUR 4,500 (four thousand five hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage; (ii) EUR 1,925 (one thousand nine hundred and twenty-five euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses; |
| Documents | Judgment |