¶ ile paragrafa bağlantı verin veya alıntıyı künyesiyle kopyalayın. Üretilen bağlantı kimlikleri resmî paragraf numarası değildir.
5. Likewise, if deeds described in the preceding sections concern personal data that reveal the [political] ideology, religion, beliefs, health, racial origin or sexual preference [of the victim], or if the victim is a minor or a person with disabilities requiring special protection, penalties in the upper half of the sentencing range shall be imposed.
6. If the deeds [in question] are perpetrated for the purposes of making a profit, then penalties shall be imposed, as provided in paragraphs 1 to 4 of this section, in the upper half [of the sentencing range]. If they also affect the data mentioned in the preceding section, the punishment to be imposed shall be a prison sentence of four to seven years.
7. Whoever, without the authorisation of the affected party, discloses, communicates or reveals to third parties images or audiovisual recordings obtained with the affected party’s consent in a private residence or at any other location out of the sight of third parties - if said disclosure seriously breaches the personal privacy of the individual [in question] - shall be punished by a prison sentence of three months to one year or a fine [under the day-fine system] amounting to between six and twelve months. The penalty shall be imposed in the upper half of the sentencing range if the deeds were committed by the [victim’s] spouse or by a person who is or has been bound to [the victim] by a similar emotional relationship (even in the absence of cohabitation), [or if] the victim was a minor or a person with disabilities requiring special protection, or [if] the deeds [in question] were committed for profit.”
Section 413
“An authority or public official who knowingly steals, destroys, fully or partially cancels, or conceals documents whose custody has been entrusted to him owing to [the nature of] his office, shall incur a prison sentence of between one and four years or a fine [under the day-fine system] of between seven and twenty-four months, and be barred from public employment and office for a period of between three and six years.”
Section 414
“1. An authority or public official to whom, owing to [the nature of] his office, is entrusted the custody of documents to which the relevant authority has restricted access, and who knowingly destroys or deactivates the means put in place to prevent such access or who consents to the destruction or deactivation thereof, shall incur a sentence of imprisonment of six months to one year or a fine [under the day-fine system] of between six and twenty-four months and, in all cases, be barred from public employment and office for a term of between one and three years.
2. An individual who destroys or deactivates the means referred to in the preceding paragraph shall be punished by [the imposition of a] fine [under the day-fine system] of between six and eighteen months.”
Section 415
“An authority or public official not listed in the preceding section who, knowingly and without due authorisation, gains or permits access to secret documents whose custody has been entrusted to [that authority or public official] owing to [the nature of] his office, shall incur a fine [under the day-fine system] of between six and twelve months and be barred from public employment and office for a term of between one and three years.”
Section 416
“Punishment by imprisonment or a fine [in an amount] below the ones respectively stated in the preceding three sections shall be imposed on private individuals entrusted on a one-off basis with the dispatch or custody of documents ordered by the Government, or on authorities or civil servants to whom they have been entrusted owing to [the nature of] their office, but who have behaved as described ...”
Section 417
“1. An authority or public official who reveals secrets or information which come to his attention owing to his position or office and which should not be revealed, shall incur a fine [under the day-fine system] of between twelve and eighteen months and be barred from public employment and office for a term of between one and three years.”
24. Concerning the civil-party complaints in the criminal procedure, the following provisions of the Code of Criminal Procedure are relevant in the present case:
Section 100
“Any crime or minor offence gives rise to criminal proceedings for the punishment of the responsible party and may also give rise to civil proceedings for the restitution of the thing, the reparation of the damage and the compensation for the harm caused by the punishable act.”
Section 112
“When only the criminal action is brought, the civil action shall also be deemed to be brought, unless the victim or offended person waives it or expressly reserves it for exercise after the conclusion of the criminal procedure, if applicable.
...”
25. Royal Decree 389/2021 of 1 June 2021, which approved the founding statute of the Spanish Data Protection Agency, reads, in its relevant parts:
Section 5
“1. The Spanish Data Protection Agency is responsible for supervising the application of the regulations in force regarding [i] the protection of personal data for the purpose of protecting the rights and freedoms of natural persons with regard to the processing and, in particular, the exercising of the functions established by Article 57, and [ii] the powers provided in Article 58 of Regulation (EU) 2016/679 of the European Parliament and of the Council ... and in Organic Law 3/2018 ... (and in the implementing provisions thereof).”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
26 . The applicants complained that Article 8 of the Convention had been violated, firstly given that the police, without any legal justification, had created a report on each applicant (as signatories to the above-mentioned manifesto) using photographs taken from the police ID database, and secondly, since that report had been leaked to the press; lastly, they complained about the publication of their photographs in the newspaper. Article 8 reads as follows:
Article 8
“1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
A. Admissibility
27. The Government argued that the applicants had not properly exhausted the available domestic remedies, since they should have resorted to civil proceedings in defence of their honour and reputation, rather than resorting to criminal proceedings.
28. The applicants considered that through the criminal proceedings initiated to find out who leaked the police report to the press, they used the appropriate national remedy to seek redress for the violation of their right to privacy.
29. The Court notes that the applicants used the administrative remedy available. In particular, they lodged the above-mentioned complaint to the Agency in respect of the alleged violation of their right to privacy and of their right to protection of their data. Those proceedings were eventually concluded (see paragraphs 15-19 above). In addition, the applicants also initiated criminal proceedings in an effort to find out who had leaked their personal data and photographs to the press and how those data and photographs had been leaked.
30. The Court reiterates that if domestic law provides for several parallel remedies in different fields of law, an applicant who has sought to obtain redress for an alleged breach of the Convention through one of these remedies is not necessarily required to use others that have essentially the same objective (see Jasinskis v. Latvia, no. 45744/08, §§ 50, 52 and 53, 21 December 2010). In view of the above, in relation to these Article 8 complaints the Government’s objection must be dismissed.
31. The Court notes that these two complaints are neither manifestly ill-founded nor inadmissible on any other grounds listed in Article 35 of the Convention. Therefore, these complaints must be declared admissible.
32. With regard to the alleged violation of Article 8 by virtue of the publication of the applicants’ photographs in the newspaper La Razón, the Court notes that the publication of the photographs and the news item about the applicants was the sole responsibility of the newspaper, which had obtained the photographs and had decided, on the basis of assessment of their newsworthiness, to publish them and to produce an article about the public manifesto signed by the applicants.
33. However, there is no record that the applicants have taken any civil legal action against the newspaper and in the course thereof argued that the publication of their photographs had infringed their right to the protection of their own image. In the criminal proceedings initiated against, among others, the newspaper director, the main object was to find out who had leaked the photographs of the applicants. Those criminal proceedings were eventually closed (see paragraphs 7-12 above).
34. In this respect, as the Government pointed out, it was open to the applicants to bring a civil action against the owner of the newspaper seeking redress for the possible infringement of their right to the protection of their own image. Having failed to do so, they lodged a complaint with the Court which has not first been examined by any national judicial body.
35. The Court reiterates that the rationale for the exhaustion rule is to afford the national authorities, primarily the courts, the opportunity to prevent or put right alleged violations of the Convention (see Mocanu and Others v. Romania [GC], nos. 10865/09 and 2 others, § 221, ECHR 2014 (extracts)). It is based on the assumption that the domestic legal order will provide an effective remedy for violations of Convention rights. This is an important aspect of the subsidiary nature of the Convention machinery (see Selmouni v. France [GC], no. 25803/94, § 74, ECHR 1999‑V).
36. Therefore, the complaint about the publication of the applicants’ photographs in a newspaper must be declared inadmissible pursuant to Article 35 §§ 1 and 4 of the Convention, as the applicants failed to exhaust the available domestic remedies.
B. Merits
1. The parties’ submissions
(a) The applicants
37. Firstly, the applicants alleged a violation of Article 8 given that the police, without any legal justification, had produced a report on them as signatories to the above-mentioned manifesto, which had included photographs taken from the police ID database, and which had also presented their personal information and political beliefs.
38. They alleged that the gathering of all their personal information including data relating to their personal political views and data pertaining to their relatives by the police and the use of that data to create a police report had warranted a high level of protection that had been intentionally breached by the leaking of that information to the press.
39. The authorities had not explained the creation of the police report without any legal justification given that it had not been aimed at the prevention or investigation of a crime. In the compilation of that report, the applicants’ facial images had been illegally extracted from the police ID database, and the report had contained comments and information gathered by the police in respect of the ideological beliefs and personal circumstances of the applicants.
40. The applicants considered that the breach of their right to respect for their private life was obvious and acknowledged in the Government’s observations, which referred to the impossibility of holding anyone criminally responsible for the State’s inaction.
41. The interference could not be justified in terms of the second paragraph of Article 8. According to the applicants, it had been clearly demonstrated that in the course of the criminal and administrative proceedings there had been a failure to investigate all the relevant facts.
42. Secondly, the applicants argued that the report had been sent and thereby leaked to the press; photographs of their faces had subsequently been included in a double-page article in the La Razón newspaper in a manner clearly designed to resemble “wanted” posters. The applicants acknowledged having signed a document in their respective capacities as legal professionals regarding a legal controversy but argued that the subsequent retaliation had taken a form that had exceeded any proportionate or legal response on the part of the State authorities.
43. The accessing, collection and dissemination of the applicants’ personal data and photographs had been carried out by public officials responsible for the custody of such data, and the leak of such data to the press had constituted a criminal offence. The applicants complained that the relevant domestic courts had not properly investigated this assertion. In particular, they considered that the investigation had not been sufficient, given that no statement had been taken from the Senior Chief of Police of Barcelona, a key person in ascertaining who was responsible for actions that the applicants considered to constitute a crime, considering that he had been the direct addressee of the report.
44. They reiterated that the Audiencia Provincial, in its decision ordering the investigating court to reopen the investigation, had referred to the testimony of the aforementioned official as relevant for the clarification of the facts of the case. Yet the investigating judge had not heard that evidence, and subsequently the Audiencia Provincial had deemed the actions undertaken by the investigating court to have been sufficient, despite the fact that it had not taken a statement from the Senior Chief of Police of Barcelona.
45. The applicants asserted that there was enormous uncertainty, which remained unresolved, regarding the link between the manifesto that they had signed while exercising their freedom of speech and the leaking of their images and personal data to a newspaper.
(b) The Government
46. The Government stated that the conduct of the proceedings by the domestic judges had in no way violated the applicants’ private or family life. On the one hand, the judges had signed a public document, thus placing themselves voluntarily outside the sphere of their respective private and family lives. On the other hand, the right to private and family life had not been violated by the domestic authorities, in view of the fact that the criminal court judges had acknowledged that the handing over of the personal data of the judges and magistrates who had signed the manifesto had indeed been a criminal act and therefore worthy of examination in criminal proceedings. The domestic authorities had failed to find sufficient evidence capable of identifying and incriminating the particular police officer who had - in violation of his or her professional duty - leaked the data. Thus, the failure to secure a conviction had resulted from the fact that, given the circumstances in question, it had not been possible to reliably identify the person responsible for the leak.
47. The judicial authorities had exerted sufficient efforts within the margin of discretion allowed them to gather the necessary evidence. Nevertheless - and even if it could be concluded that the personal data published by the La Razón newspaper had been unlawfully provided to it - there had never been any doubt that a violation had been committed of the applicants’ right to private or family life, since the domestic courts had acknowledged that disclosing the applicants’ data had constituted an offence. Nevertheless, the examination of the evidence - in respect of which the Contracting Parties enjoyed a margin of discretion that this Court should respect, at risk of turning itself into a fourth-instance court - had not made it possible to find the person responsible for the criminal conduct in question.
48. The Government argued that the applicants had initiated criminal proceedings and that they had obtained reasoned judicial decisions, and that they had had the opportunity to appeal against the decisions of the judicial body concerned and had received a reasoned response from the Audiencia Provincial.
49. In respect of the assertion of the applicants regarding the evidence adduced during the judicial proceedings, the Government noted that the Audiencia Provincial had found that the examination of the evidence sought by the applicants - namely, the statement given by the Senior Chief of Police of Barcelona - was irrelevant, since in the case under investigation, there was no evidence to suggest that that person had been the perpetrator of the offence in question; in any case, if that person had had any kind of responsibility, it would not have been of any criminal relevance but rather of disciplinary nature falling outside the scope of the criminal courts’ jurisdiction.
50. Neither the Convention nor domestic legislation provided for the right to accept and examine any and all evidence proposed by a plaintiff, especially in criminal cases where investigative proceedings were initiated ex officio by the investigating judge. Moreover, neither was there any right to seek the criminal conviction of a third party.
51. The domestic authorities, applying the relevant case-law, had considered that the behaviour at issue did not warrant criminal prosecution, and had therefore dismissed the complaint, in accordance not only with Spanish law but also with the case-law of the Court.
2. The Court’s assessment
(a) General principles
(i) Negative obligations under Article 8
52. The primary purpose of Article 8 is to protect against arbitrary interference by a public authority with a person’s private and family life, home, and correspondence. This negative obligation is described by the Court as the essential object of Article 8 (see Kroon and Others v. the Netherlands, 27 October 1994, § 31, Series A no. 297‑C). Where the case concerns a negative obligation, the Court must assess whether the interference was consistent with the requirements of paragraph 2 of Article 8 - that is to say in accordance with the law, in pursuit of a legitimate aim, and necessary in a democratic society (see Libert v. France, no. 588/13, §§ 40 and 42, 22 February 2018).
53. A finding that the measure in question was not “in accordance with the law” suffices for the Court to hold that there has been a violation of Article 8 of the Convention. It is not therefore necessary to examine whether the interference in question pursued a “legitimate aim” or was “necessary in a democratic society” (see M.M. v. the Netherlands, no. 39339/98, § 46, 8 April 2003).
54. In determining whether the personal information retained by the authorities involves any “private life” aspects, the Court must have due regard to the specific context in which the information at issue has been recorded and retained, the nature of the records, the way in which those records are used and processed and the results that may be obtained (see S. and Marper v. the United Kingdom [GC], nos. 30562/04 and 30566/04, § 67, ECHR 2008).
55. The Court has held that the mere fact of storing data relating to the private life of an individual amounts to an interference within the meaning of Article 8 (see Leander v. Sweden, 26 March 1987, § 48, Series A no. 116). The subsequent use of the stored information has no bearing on that finding (see Amann v. Switzerland [GC], no. 27798/95, § 69, ECHR 2000-II). The Court reiterates that it is important to limit the use of the data to the purpose for which they were recorded (see S. and Marper, cited above, § 103). Data revealing political opinion falls among the special categories of sensitive data attracting a heightened level of protection (see Catt v. the United Kingdom, no. 43514/15, § 112, 24 January 2019).
(ii) Positive obligations under Article 8
56. While the essential object of Article 8 is to protect the individual against arbitrary interference by the public authorities, it does not merely compel the State to abstain from such interference: in addition to this negative undertaking, there may be positive obligations inherent in the need to ensure effective respect for private life (see Botta v. Italy, judgment of 24 February 1998, Reports 1998-I, p. 422, § 33).
57. The Court therefore needs to ascertain whether the national authorities took the necessary steps to ensure the effective protection of the applicant’s right to respect for his private life and correspondence (see Craxi v. Italy (no. 2), no. 25337/94, §§ 73 and 74, 17 July 2003).
58. Concerning serious acts, the State’s positive obligation under Article 8 to safeguard individuals’ physical or moral integrity may also extend to questions relating to the effectiveness of a criminal investigation (see Khadija Ismayilova v. Azerbaijan, nos. 65286/13 and 57270/14, § 115, 10 January 2019).
59. For an investigation to be regarded as “effective”, it should in principle be capable of leading to the establishment of the facts of the case and to the identification and punishment of those responsible. This is not an obligation of result, but one of means (see Alković v. Montenegro, no. 66895/10, § 65, 5 December 2017).
60. In examining the effectiveness of criminal investigations within the context of the positive obligations under, inter alia, Article 8 of the Convention, the Court has previously used the “significant flaw” test. The Court’s task under that test is to determine whether the alleged shortcomings in an investigation had such significant flaws as to amount to a breach of the respondent State’s positive obligations under Article 8 of the Convention (see Söderman v. Sweden [GC], no. 5786/08, § 90, ECHR 2013).
(b) Application to the present case
(i) As regards the existence of a police report
61. The Court notes that there is no domestic legal provision that would justify the drawing by police of a report on citizens when there were no indications that they could have committed a crime or were involved in the preparatory steps necessary for the commission of a crime.
62. The report, dated 18 February 2014, referred to a group of some twenty-five serving judges in Catalonia who were going to publish a manifesto in defence of the legality of the sovereignty consultation, which was scheduled for 9 November 2014. The report identifies the alleged “main promoter and most active drafter”. The content of the report refers to “thirty-four judges and magistrates who exercise their functions in Catalonia”, and includes a photograph of each of them, their addresses, their job titles and, in some cases, observations on such matters as their membership of professional associations and their participation in professional courses.
63. According to the domestic courts, the data included in the report consist of personal data, photographs and certain professional information (partially extracted from the police ID database). Moreover, data pertaining to some of the applicants concern their political views.
64. In view of the circumstances mentioned above, since the interference with the applicants’ private life was not in accordance with any domestic law, and the public authorities have used the personal data for a purpose other than that which justified their collection, the Court concludes that the mere existence of the police report in issue, which was drafted in respect of individuals whose behaviour did not imply any criminal activity, amounts to a violation of Article 8.
(ii) As regards the leak to the press and ensuing investigation
65. It is uncontested that the photographs of the applicants that were published in the newspaper originated in the police database, to which only the authorities had access. Even though the way in which those photographs were leaked was not determined by the domestic investigation, there is no explanation other than that the authorities 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 (see Craxi, cited above § 74).
66. In an initial investigation of the case, the Investigating Judge closed the proceedings because, in his opinion, although the alleged facts had constituted a crime, it was not possible to identify the perpetrator or perpetrators. In this initial process, following the appeal lodged by the applicants, the Audiencia Provincial ruled that not all the necessary steps had been taken for it to be acceptable to close the proceedings on the grounds that it was not possible to identify the person who had committed the crime. Therefore, the Audiencia Provincial considered it “relevant” to carry out further investigative measures, such as hearing the Senior Chief of Police of Barcelona, who had ordered the above-mentioned report on the applicants and who had been the addressee of the report, the contents of which were later leaked to the press.
67. The Investigating Judge reopened the investigation and took statements from more witnesses but did not consider it appropriate to call the Senior Chief of Police of Barcelona to testify, and he closed the proceedings on the same grounds as previously. After the applicants appealed, the Audiencia Provincial 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 was 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.
68. The data protection Agency, at the request of the applicants, carried out a technical investigation into the use of their data after the criminal proceedings had ended (see paragraphs 15 to 19 above). However, from the documents provided to the Court it does not appear that the Investigating Judge, during the criminal investigation, availed himself of the possibility of seeking the Agency to establish the relevant facts. The Court notes that the Senior Chief of Police of Barcelona was, as stated in the judicial decisions, the direct addressee of the report drawn up on the applicants, certain contents of which (mainly the applicants’ photographs) were subsequently leaked to the La Razón newspaper. The Audiencia Provincial itself, when ruling on the applicants’ first appeal against the dismissal of the case, stated that “it would be relevant to hear [the Senior Chief of Police of Barcelona] in his capacity as the direct addressee” of the report.
69. In view of the circumstances of the case, the Court considers that for a sufficient investigation to be carried out, it was 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 since, regardless of his criminal or disciplinary responsibility, his testimony would have aided the identification of those responsible for the criminal acts in question.
70. In view of the above, the Court is not satisfied that an effective inquiry was carried out in order to determine the circumstances in which the journalists gained access to the photographs of the applicants and, if necessary, to sanction the persons responsible for the shortcomings that had occurred.
71. Therefore, 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 were susceptible of remedying the interference with the applicants’ rights must be considered to constitute a failure by the respondent State to comply with its positive obligations under Article 8 of the Convention (see Alković, cited above, § 65).
72. The Court holds, therefore, that there has been a violation of Article 8 of the Convention.
II. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION
73. The applicants complained that Article 10 of the Convention had been violated, because by signing the manifesto they had expressed their views regarding a legal controversy and, following the publication of the newspaper article, they had been subjected to disciplinary action (see paragraphs 20-21 above). Article 10 reads as follows:
“1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.
2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”
Admissibility
1. The parties’ submissions
(a) The Government
74. The Government deemed that the applicants had had a right to enjoy absolute freedom of expression, since they had not only signed a manifesto in favour of the right of the Catalan people to decide their future as a nation but had been entitled to do so despite their positions as judges, that is to say public officials subject to a special duty of loyalty to the Constitution. However, by signing a public manifesto (via the media), they had voluntarily left the private sphere and placed themselves in the public arena, exercising the right to freedom of information that was enjoyed by all citizens. It was this freedom of information that protected the dissemination of information by the press.
75. The Government recalled that not a single authority with the power to impose sanctions on or exercise disciplinary powers against the judges who had signed the manifesto had ended up taking any decision detrimental to their interests; on the contrary, many of them had later received career promotions, which demonstrated that signing the manifesto had not had any impact on them whatsoever.
76. The group of public officials known as “Manos Limpias” had lodged a complaint against the thirty-three judges who had signed the manifesto with the General Council of the Judiciary, a body with disciplinary powers over judges and magistrates, requesting the suspension of the judges who had signed the manifesto. In the light of that complaint, the General Council of the Judiciary had opened a number of disciplinary proceedings in respect of each of the judges concerned, in accordance with the rules governing disciplinary proceedings. No sanction had ever been imposed on any of the applicants.
(b) The applicants
78. Furthermore, they alleged that because they had expressed their views about a legal controversy by signing a manifesto, the police had created a file containing personal data and images which had then been leaked to the press by way of public retaliation.
2. The Court’s assessment
(a) General principles
79. The Court recalls that interference with the right to freedom of expression may entail a wide variety of measures, generally a “formality, condition, restriction or penalty” (see Wille v. Liechtenstein [GC], no. 28396/95, § 43, ECHR 1999‑VII).
80. In establishing whether or not there has been interference with the right to freedom of expression, there is no need to dwell on the characterisation given by the domestic courts (see Yılmaz and Kılıç v. Turkey, no. 68514/01, § 58, 17 July 2008).
81. In cases concerning disciplinary proceedings or the removal or appointment of judges, when ascertaining whether the measure complained of amounted to an interference with the exercise of the applicant’s freedom of expression, the Court has first determined the scope of the measure by viewing it within the context of the facts of the case in question and of the relevant legislation (see Baka v. Hungary [GC], no. 20261/12, § 140, 23 June 2016).
82. The Court carries out a case-by-case examination of situations that may have a restrictive impact on the enjoyment of freedom of expression. It considers that mere allegations that any contested measures had a “chilling effect”, without clarifying in which specific situation such an effect occurred, is not sufficient to constitute interference for the purposes of Article 10 of the Convention (see Schweizerische Radio- und Fernsehgesellschaft and Others v. Switzerland, (dec.), no. 68995/13, § 72, 12 November 2019).
(b) Application of the general principles to the present case
83. For the reasons set out below the Court cannot accept the argument according to which the applicants suffered reprisals for the signing the manifesto, and their freedom of expression was thereby infringed.
84. The applicants allege that they were subjected to disciplinary proceedings for signing the manifesto. The Court finds that, while it is true that disciplinary proceedings were brought against the applicants, there are two circumstances which show that the applicants’ complaint should be rejected.
85. Firstly, it should be emphasised that the proceedings were the result of a complaint by a trade union (known as “Manos Limpias”), these proceedings were not opened ex officio by any public authority. This means that the General Council of the Judiciary, as the governing body of the judiciary, never considered the signature of the manifesto by the applicants as a relevant fact for any kind of response to be initiated ex officio by the Council. Only when a legitimate third party denounced the applicants’ actions did the Council, by legal imperative, agree to open disciplinary proceedings.
86. Even more important, in view of the multiple proceedings carried out is their outcome and the reasons given by the General Council of the Judiciary. Once the disciplinary proceedings had been conducted, it was concluded that they 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.
87. Following this initial decision, the trade union which had sued the applicants lodged an appeal to the standing committee (Comisión Permanente) of the General Council of the Judiciary. This appeal was dismissed on the grounds that the General Council of the Judiciary, once more, considered that the ideas put forward by the applicants in the manifesto constituted the exercise of their freedom of expression and that, without prejudice to other assessments, it should not imply the exercise of disciplinary measures against the signatories.
88. The Court finds that there was no reprisal by the public authorities against the applicants and that the action of the judges’ governing body was exclusively due to a complaint by a third party.
89. Moreover, as the Government have made clear in their observations, the applicants continued their professional careers and were promoted under usual procedure by the General Council of the Judiciary without any prejudice resulting from their participation in the aforementioned manifesto.
90. Therefore, no type of sanction or chilling effect can be discerned from the mere fact that disciplinary proceedings took place, given their outcome and also the fact that they were not initiated ex officio by the General Council of the Judiciary but rather as a consequence of a complaint having been lodged by a third party.
91. The foregoing considerations are sufficient to enable the Court to conclude that the complaint related to Article 10 must be declared inadmissible as manifestly ill-founded pursuant to Article 35 §§ 3 (a) and 4 of the Convention.
III. ALLEGED VIOLATION OF ARTICLE 6 § 1 of the Convention
92. The applicants complained about a breach of their right to a fair trial on the ground that the investigation carried out in respect of the crimes reported by them had not been sufficient. They relied on Article 6 § 1 of the Convention which in its relevant parts reads as follows:
“1. In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by an independent and impartial tribunal established by law.” ...
93. Having regard to the facts of the case and its findings under Article 8 of the Convention concerning the investigation in issue (see paragraphs 65 to 72 above), the Court considers that it is not necessary to examine the admissibility and merits of this remaining complaint.
IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION
94. Article 41 of the Convention provides:
“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”
A. Damage
95. Each of the applicants claimed 13,500 euros (EUR) in respect of non-pecuniary damage.
96. The Government considered that no just satisfaction should be awarded.
97. The Court awards each applicant EUR 4,200 in respect of non-pecuniary damage, plus any tax that may be chargeable.
B. Costs and expenses
98. The applicants also claimed EUR 7,332.20 for the costs and expenses incurred before the domestic courts and EUR 2,178 for those incurred before the Court.
99. The Government considered that the applicants’ lawyer included the cost of legal assistance although such amount could not be disputed as improper or excessive by the Spanish State in the proceedings.
100. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these were actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the applicants jointly the sum of EUR 3,993 covering costs under all heads for costs and expenses in the domestic proceedings and for the proceedings before the Court, plus any tax that may be chargeable to the applicants.
C. Default interest
101. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.
FOR THESE REASONS, THE COURT, UNANIMOUSLY,
1. Declares the complaints concerning the alleged violation of Article 8 of the Convention related to the publication of the applicants’ photographs in a newspaper and the alleged violation of Article 10 of the Convention inadmissible;
2. Declares the remaining complaints under Article 8 of the Convention admissible;
3. Holds that there has been a violation of Article 8 of the Convention on account of both the drawing of the police report containing the applicants’ personal data and the leak of their photographs contained therein;
4. Holds that there is no need to examine the admissibility and merits of the complaint under Article 6 § 1 of the Convention;
5. Holds
(a) that the respondent State is to pay the applicants, within three months from the date on which the judgment becomes final, in accordance with Article 44 § 2 of the Convention, the following amounts at the rate applicable at the date of settlement:
(i) EUR 4,200 (four thousand two hundred euros) to each applicant, plus any tax that may be chargeable, in respect of non-pecuniary damage;
(ii) EUR 3,993 (three thousand nine hundred and ninety-three euros) jointly, plus any tax that may be chargeable to the applicants, in respect of costs and expenses;
(b) that from the expiry of the above-mentioned three months until settlement, simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period, plus three percentage points.
Done in English, and notified in writing on 28 June 2022, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Milan Blaško Georges Ravarani
Registrar President
APPENDIX
|
No. |
Applicant’s Name |
Year of birth |
|
1. |
M.D. |
1973 |
|
2. |
J.A. |
1945 |
|
3. |
J.A. |
1955 |
|
4. |
A.A. |
1948 |
|
5. |
R.A. |
1954 |
|
6. |
M.A. |
1954 |
|
7. |
L.C. |
1946 |
|
8. |
F.G. |
1957 |
|
9. |
E.H. |
1956 |
|
10. |
R.L. |
1956 |
|
11. |
D.M. |
1971 |
|
12. |
M.M. |
1958 |
|
13. |
J.N. |
1952 |
|
14. |
M.P. |
1962 |
|
15. |
M.R. |
1971 |
|
16. |
F.R. |
1951 |
|
17. |
J.R. |
1962 |
|
18. |
M.S. |
1953 |
|
19. |
J.U. |
1955 |
|
20. |
S.V. |
1953 |
BAILII: