Het Europese Hof voor de Rechten van de Mens besliste in juni dat de Griekse overheid onjuist handelde door een portret en persoonsgegevens van een verdachte van fraude te publiceren, zonder betrokkene op de hoogte te stellen en zonder dat betrokkene in rechte voldoende mogelijkheden had om tegen de openbaarmaking van de persoonsgegevens op te komen. Daarbij speelde een rol dat zij werd verdacht van minder zware feiten dan haar mede-verdachten en dit in de publicatie niet correct naar voren kwam. Het Hof concludeerde dat artikel 8 EVRM was geschonden.

Onderwerp van de procedure (uit de uitspraak):

1. The application concerns the publication of the applicant’s photograph and personal data in the press for a period of six months after she had been charged with certain offences. The applicant complained that the publication had taken place following an order of the public prosecutor to that effect, without her having prior knowledge of it, without her being able to contest the decision and without her being distinguished from her co-accused as regards the offences she had been charged with, which gave the public the impression that she had been charged with more serious (forms of) offences than was actually the case.

Over de vraag of de openbaarmaking gerechtvaardigd was, concludeerde het Hof dat het gegeven de omstandigheden niet het geval was:

60. The foregoing considerations are sufficient to enable the Court to conclude that the interference with the applicant’s right to respect for her private life occasioned by the prosecutor’s order and the police announcement was not sufficiently justified in the particular circumstances of the case and, notwithstanding the national court’s margin of appreciation in such matters, was disproportionate to the legitimate aims pursued. Accordingly, there has been a violation of Article 8 of the Convention.

Dit wordt in overwegingen 50 tot en met 59 toegelicht, onder meer in (markering door mij):

57. Turning to the assessment of the proportionality of that publication and whether the authorities provided relevant and sufficient reasons for it, the Court observes that Greek domestic law provides for certain safeguards when the prosecutor orders the publication of personal data and photographs in the context of pending criminal proceedings, such as notification to the defendant beforehand and a right of appeal. However, in the specific case of setting up or joining a criminal organisation the above-mentioned safeguards do not apply. In particular, 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. The Court takes issue with this aspect of the domestic law. In particular, it has already found a violation of Article 8 of the Convention in cases in which the photographs of accused people had been given to the press without their consent when there was no basis for this in domestic law (see Sciacca, cited above, § 30) or when the interference was not justified (see Khuzhin and Others, cited above, § 117). Although a legally binding obligation to obtain an accused person’s consent before the publication of his or her photograph and of the charges faced could run counter to the purpose of the law, 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, since the fact of being the subject of criminal proceedings did not curtail the scope of the broader protection of her private life which she enjoyed as an “ordinary person” (see Sciacca, cited above, § 29).

58. Moreover, the applicant had no right to appeal against the prosecutor’s order for the publication of her photograph and personal data. The law provided that for specific categories of offences, the order would be in force immediately and would be approved by the prosecutor of the Court of Appeal, but without specifying the criteria for such approval (see paragraph 17 above). Even though Article 8 of the Convention contains no explicit procedural requirements, it is important for the effective enjoyment of the rights guaranteed by this provision that the relevant decision-making process is fair and such as to afford due respect to the interests safeguarded by it. Such a process may require the existence of an effective procedural framework whereby an applicant can assert his or her rights under Article 8 under conditions of fairness (see Ciubotaru v. Moldova, no. 27138/04, § 51, 27 April 2010). However, in the circumstances of the present case, the applicant 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.

59. Lastly, the Court takes note of the applicant’s argument that she had only been charged with the misdemeanour of joining a criminal organisation as provided for in Article 187 § 5 of the Criminal Code and not with the more serious form of that offence as provided for in Article 187 § 1 of the Criminal Code. While the prosecutor’s order described with sufficient clarity the exact offences that the applicant had been accused of, the police announcement in execution of the prosecutor’s order made no distinction among the defendants, stating merely that they had been accused of the offences “as applicable”. The police announcement was later published in the media. In this connection, the Court considers that the processing of personal data relating to criminal charges calls for enhanced protection because of the particular sensitivity of the data at issue (…). It is therefore of the utmost importance that when sensitive data are being published in the context of pending criminal proceedings or in the context of the investigation of criminal offences that those data accurately reflect the situation and the charges pending against an accused person, regard also being had to the observance of the presumption of innocence.

Meer informatie:
Uitspraak van het Europese Hof voor de Rechten van de Mens van 20 juni 2023, ‘Margari v. Greece’, ECLI:CE:ECHR:2023:0620JUD003670516 (no. 36705/16), persbericht Hof, uitspraak.

NB Als ik probeer naar de EHRM portal HUDOC te gaan rinkelt het van de adtech. Vreemd.