Last Updated on June 28, 2022 by LawEuro
Information Note on the Court’s case-law 263
June 2022
M.D. and Others v. Spain – 36584/17
Judgment 28.6.2022 [Section III]
Article 8
Positive obligations
Article 8-1
Respect for private life
Police report on judges who signed a manifesto on the Catalan people’s “right to decide” and insufficient inquiry into data leak to press: violation
Article 10
Article 10-1
Freedom of expression
No reprisals against judges for signing manifesto on the Catalan people’s “right to decide” or chilling effect: inadmissible
Facts – In February 2014, the applicants, twenty serving judges and magistrates who worked in Catalonia, signed a manifesto in which they set out their legal opinion in favour of the possibility of exercising the Catalan people’s so-called “right to decide”, within the framework of the Spanish Constitution and international law.
A national newspaper subsequently published an article under the headline “The conspiracy of thirty-three separatist judges”, featuring photographs and personal details of all the applicants (such as their names and surnames, the courts in which they were working, and comments on their political beliefs). In the applicants’ opinion, that data had been extracted from their respective entries in the database of the Spanish police (“the police ID database”), which had contained the identification of all Spanish citizens necessary for the issuance and management of Spanish identity documents.
The applicants lodged a complaint, leading to the initiation of criminal proceedings before an Investigating Judge. The complaint was dismissed on the basis that, although the facts constituted a criminal offence, there were insufficient grounds for attributing them to a particular person. The applicants appealed successfully to the Audencia Provincial, which stated inter alia that not all necessary efforts had been taken to clarify the facts. The Audencia Provincial noted the existence of a police report (“the report”), directed to the Senior Chief of Police of Barcelona and regarding the applicants’ identities and personal and professional details, together with the applicants’ photographs (taken from the police ID database). The report began by referring to a previous information note, in respect of the leaking of the applicants’ data to the newspaper, which stated: “[A]t the beginning of February, a group of some twenty-five serving judges in Catalonia will publish a manifesto in defence of the legality of the sovereignty consultation (…)”.
Following the Audiencia Provincial’s decision, the Investigating Judge closed the proceedings once again on the same grounds. The applicants lodged another appeal, this time without success.
Finally, disciplinary proceedings were brought against the applicants by the General Council of the Judiciary (“the Council”). No sanctions were issued and the proceedings were closed.
Law – Article 8:
(a) Negative obligations: as regards the existence of a police report
The impugned report had referred to a group of serving judges in Catalonia who were going to publish a manifesto in defence of the legality of the sovereignty consultation. The data included in the report had consisted of personal data, photographs and certain professional information (partially extracted from the police ID database). Moreover, data pertaining to some of the applicants had concerned their political views.
The interference with the applicants’ private life had not been in accordance with any domestic law, and the public authorities had used the personal data for a purpose other than that which had justified their collection. In view of the foregoing, the mere existence of the police report in issue, which had been drafted in respect of individuals whose behaviour had not implied any criminal activity, amounted to a violation of Article 8.
Conclusion: violation (unanimously).
(b) Positive obligations: as regards the leak to the press and ensuing investigation
The photographs of the applicants that had been published in the newspaper had originated in the police database, to which only the authorities had had access. Even though the way in which those photographs had been leaked had not been determined by the domestic investigation, there was no explanation other than that the authorities had permitted such a leak to be possible, thus engaging the responsibility of the respondent State. When such an unlawful disclosure had taken place, the positive obligation inherent in the effective respect for private life implied an obligation to carry out effective inquiries in order to rectify the matter to the extent possible.
In an initial investigation of the case, the Investigating Judge had closed the proceedings because it had not been possible to identify the perpetrator(s). Following the appeal lodged by the applicants, the Audiencia Provincial had ruled that not all the necessary steps had been taken for it to be acceptable to close the proceedings on grounds that it had not been possible to identify the person who had committed the crime. Therefore, it had considered it “relevant” to carry out further investigative measures, such as hearing the Senior Chief of Police of Barcelona, who had ordered the report on the applicants and who had been the addressee of the report, the contents of which had later been leaked to the press.
The Investigating Judge had reopened the investigation and taken statements from more witnesses but it had not considered it appropriate to call the Senior Chief of Police of Barcelona to testify, and he had closed the proceedings on the same grounds as previously. After the applicants had appealed, the Audiencia Provincial had upheld the decision of the investigating body and ruled that the testimony of the Senior Chief of Police could not have been relevant as there had been no evidence of his having participated in the criminal acts under investigation and that his conduct, in any event, would have at the most constituted only an administrative offence.
The data protection Agency, at the request of the applicants, had carried out a technical investigation into the use of their data after the criminal proceedings had ended. However, it did not appear that the Investigating Judge, during the criminal investigation, had availed himself of the possibility of seeking the Agency to establish the relevant facts.
In view of the circumstances of the case, for a sufficient investigation to be carried out, it had been necessary for the investigators to have obtained a statement from the person who had been the direct addressee of the report and who had been responsible for the persons who had accessed the police ID database and collected the data and photographs of the applicants. Regardless of his criminal or disciplinary responsibility, his testimony would have aided the identification of those responsible for the criminal acts in question.
Accordingly, the Court was not satisfied that an effective inquiry had been carried out in order to determine the circumstances in which the journalists had gained access to the photographs of the applicants and, if necessary, to sanction the persons responsible for the shortcomings that had occurred. The failure of the judicial bodies involved to carry out certain investigative measures which would most likely have been useful for the investigation into the facts of the case, and which had been susceptible of remedying the interference with the applicants’ rights, constituted a failure by the respondent State to comply with its positive obligations under Article 8.
Conclusion: violation (unanimously).
Article 10:
The Court could not accept the argument according to which the applicants had suffered reprisals for signing the manifesto, and that their freedom of expression had thereby been infringed.
Disciplinary proceedings had been brought against the applicants. However, the proceedings had been the result of a complaint by a trade union, and had not been opened ex officio by any public authority. Only when a legitimate third party had denounced the applicants’ actions had the Council, by legal imperative, agreed to open disciplinary proceedings. Even more importantly, it had been concluded that the disciplinary proceedings should be closed, as the applicants had signed the manifesto in the legitimate exercise of their freedom of expression and therefore no sanctions should be imposed. Following that initial decision, the trade union had lodged an appeal to the standing committee of the Council, which had been dismissed on the same grounds.
The applicants had continued their professional careers and had been promoted under usual procedure by the Council, without any prejudice resulting from their participation in the aforementioned manifesto.
Therefore, no type of chilling effect could be discerned from the mere fact that disciplinary proceedings had taken place.
Conclusion: inadmissible (manifestly ill-founded).
Article 41: EUR 4,200 each in respect of non-pecuniary damage.
(See also Craxi v. Italy (no. 2), 25337/94, 17 July 2003, Legal Summary)
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