¶ ile paragrafa bağlantı verin veya alıntıyı künyesiyle kopyalayın. Üretilen bağlantı kimlikleri resmî paragraf numarası değildir.
50. Turning to the present case, the Court notes at the outset that it will confine its examination of the complaint under this head only to the proceedings before the domestic authorities. In this connection, it notes that no oral hearing was held at any stage of the domestic proceedings. It will therefore need to examine whether there were exceptional circumstances, as set out in the Court’s case-law, in the present case that justified dispensing with an oral hearing.
51. The Court observes that the applicant community did not request such a hearing in the proceedings before the Board. In its appeal of 17 October 2013 against the Board’s decision, the applicant community requested that the Administrative Court hold an oral hearing in order to present certain evidence and supplement the reasoning presented in the written submissions (see paragraph 12 above). However, it did not specify what evidence it wished to present at the hearing, as required by section 38(3) of the Administrative Judicial Procedure Act (see paragraph 38 above). Nor did it explain why it was necessary to submit that evidence, as well as the additional legal arguments, at a hearing and not in writing. Notwithstanding these omissions on the part of the applicant community, the Administrative Court examined the request and, referring to section 38(2) of the Act, decided to dispense with an oral hearing (see, conversely, Mirovni Inštitut v. Slovenia, no. 32303/13, §§ 44 and 45, 13 March 2018). Firstly, it held that there was no need for an oral hearing regarding the complaints that it dismissed without considering them on the merits (the appeal submitted by two individual Jehovah’s Witnesses and the issues regarding the use of form S-43, which the applicant community had withdrawn). Secondly, it held that an oral hearing regarding the remaining part of the appeal was manifestly unnecessary in view of the outcome of the case, which was to the applicant community’s benefit. The Court does not find this reasoning untenable.
52. As regards the proceedings before the Supreme Administrative Court, the Court notes that the applicant community did not request a hearing in its first observations of 20 April 2015 submitted in reply to the Ombudsman’s appeal (see paragraph 16 above). Such a request was first made in the last round of submissions to that court, dated 20 September 2018, which followed the preliminary ruling proceedings before the CJEU (see paragraph 23 above). A hearing was sought because the “relevant factual issues” pertaining to the nature of door-to-door preaching by members of the Jehovah’s Witnesses Community, the concept of a “filing system” referred to by the Data Protection Directive and its participation in the processing of the personal data of the persons contacted “ha[d] not been answered by the CJEU’s preliminary ruling” (see paragraph 23 above). The applicant’s request was accompanied by the written testimony of twenty‑four individual Jehovah’s Witnesses whom the applicant community wished to call.
53. The Supreme Administrative Court did not find it necessary to hold a hearing in order to hear those named orally as witnesses, as their statements were taken into account as written evidence. Indeed, that court referred expressly to the witnesses’ written statements in order to establish the content of the notes, as well as the methods and techniques used by individual Jehovah’s Witnesses to record and organise the personal data of data subjects (see paragraphs 25 and 26 above). In doing so, the court referred to section 39 of the Administrative Judicial Procedure Act, which gave the administrative courts latitude to consider whether hearing a witness was necessary in the circumstances of a case (see paragraph 38 above).
54. The Court further reiterates that the absence of a hearing before a second or third-instance court must be examined in the light of the entirety of the proceedings (see Juričić v. Croatia, no. 58222/09, § 89, 26 July 2011), and all relevant circumstances. In this connection, it observes that the practice regarding the collection and processing of personal data in the context of door-to-door preaching by individual Jehovah’s Witnesses was the subject of debate at national level for many years and that the proceedings involving the applicant community started at the latest in 2011 and ended on 17 December 2018, when the Supreme Administrative Court gave a final decision in the case (see paragraphs 5 and 24 above). During the proceedings, the applicant community availed itself of the opportunity, at each level of jurisdiction, to adduce evidence and submit its arguments on all points of fact and law (see paragraphs 5, 7, 12, 16 and 23 above). This was also the case in the preliminary ruling proceedings before the CJEU, which consisted of both written and oral phases (see paragraphs 18 and 19 above).
55. It is to be noted that the preliminary ruling from the CJEU was requested by the Supreme Administrative Court, as the court of last instance at national level, in the light of the entire evidential material and legal arguments adduced until that moment. The CJEU considered that “it ha[d] all the evidence necessary to enable it to reply to the questions referred” and that “the order for reference contain[ed] sufficient factual and legal information to understand both the questions referred for a preliminary ruling and their scope” (see paragraph 19 above). Repeatedly noting as “clear from the order for reference” and “clear from the findings of the referring court”, the CJEU reached important conclusions of fact and law relevant for its judgment (see paragraphs 19-22 above). It noted, inter alia, that “some of the data collected by the members of that community who engage[d] in preaching [were] sent by them to the congregations of that community which compile[d] lists from that data of persons who no longer wish[ed] to receive visits from those members” (see paragraph 45 thereof) and, in this connection, that such data “[were] collected as a memory aid, on the basis of an allocation by geographical sector, in order to facilitate the organisation of subsequent visits to persons who ha[d] already been contacted. They include[d] not only information relating to the content of conversations concerning the beliefs of the person contacted, but also his name and address. Furthermore, those data ... [were] used to draw up lists kept by the congregations of the Jehovah’s Witnesses Community of persons who no longer wish[ed] to receive visits by members who engage[d] in the preaching of that community” (see paragraph 59 thereof, see similar conclusion in paragraph 70 thereof). Similarly, it concluded that “(door-to-door) preaching [was] ... organised, coordinated and encouraged by that community ...” and that it “organise[d] and coordinate[d] the preaching activities of its members, in particular, by allocating areas of activity between the various members who engage[d] in preaching” (see paragraphs 70 and 71 thereof).
56. The above findings coincide with the facts established by the national authorities regarding the existence and content of the notes taken by individual Jehovah’s Witnesses during their door-to-door preaching and the related leaflet published by the applicant community, namely that such data served as a memory aid for return visits of people who had shown interest, or assisted the creation of the so-called “prohibition register” for people who no longer wished to receive visits, and amounted, accordingly, to a retrievable personal data file, and that door-to-door preaching was organised, coordinated and encouraged by the applicant community according to territory (see paragraphs 8, 9, 10, 17, 25, 26 and 27 above). It is noteworthy that the above findings in the domestic proceedings were either not contested by the applicant community or explicitly acknowledged by the latter. Indeed, the applicant community had admitted that local congregations of Jehovah’s Witnesses maintained a “manual filing system” containing personal data about people who wished not to be visited by Jehovah’s Witnesses (see paragraph 5 above) and that notes made by individual Jehovah’s Witnesses during their door-to-door preaching “served ... as a ‘memory aid’ when revisiting those who show[ed] interest” (see paragraphs 12 and 16 above). Similarly, it confirmed that it maintained a territory map which “aimed to enable orderly contact with residents in the community” (see paragraph 18 above). Indications that the applicant community “encourage[d]” individual Witnesses to participate in preaching activities and that their notes assisted them to contact and visit people in an organised manner can be found in its appeal against the Board’s decision (see paragraph 12 above).
57. In such circumstances, and in the absence of any argument pertaining to the credibility of the evidence, it cannot be said that the decisive facts on which the order was based were in dispute between the parties and that they warranted an oral hearing. Furthermore, the Court is satisfied that the legal issues at stake, which were at the core of the proceedings, did not require an oral hearing and that the written procedure provided the applicant community with an opportunity to effectively put forward its arguments (see Jussila v. Finland [GC], no. 73053/01, § 48, ECHR 2006‑XIV). There were therefore exceptional circumstances which justified dispensing with an oral hearing.
58. There has accordingly been no violation of Article 6 of the Convention on account of the lack of an oral hearing in the impugned proceedings.
II. Alleged violation of Article 9 of the Convention
59. The applicant community complained that the Board’s order prohibiting any notes being taken by individual Jehovah’s Witnesses for their personal use in the context of their door-to-door preaching activities without the consent of the data subject had violated its rights under Articles 9 and 10 of the Convention.
60. The relevant provisions read as follows:
Article 9 (freedom of thought, conscience and religion)
“1. Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance.
2. Freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.”
Article 10 (freedom of expression)
“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.”
A. Preliminary remarks on the scope and context of the Court’s assessment
61. In the domestic proceedings, the applicant community argued that door-to-door preaching, in the course of which individual Jehovah’s Witnesses might take certain notes, had to be seen in the context of freedom of religion, and referred explicitly to Article 9 of the Convention (see paragraphs 7, 12 and 16 above). The national authorities also held that notes containing personal data could be taken in the course of the door-to-door preaching, a religious activity aimed at manifesting or spreading the faith of Jehovah’s Witnesses (see paragraphs 10, 14 and 27 above). That conclusion overlaps with the findings of the CJEU that “... the collection of personal data by members of the Jehovah’s Witnesses Community in the course of door-to-door preaching [was] a religious procedure carried out by individuals” and “that door-to-door preaching, in the course of which personal data [were] collected by members of the Jehovah’s Witnesses Community, [was], by its very nature, intended to spread the faith of the Jehovah’s Witnesses Community ...” (see paragraph 20 above).
62. Given that the applicant community’s religious freedom, in particular the freedom to manifest its faith, as enshrined in Article 9 of the Convention is at the heart of its grievances, the Court, being the master of the characterisation to be given in law to the facts of the case (see Radomilja and Others v. Croatia [GC], no. 37685/10, § 124, 20 March 2018, and Söderman v. Sweden [GC], no. 5786/08, § 57, ECHR 2013), considers that the complaint under this head should be analysed only under Article 9 of the Convention, which, in the circumstances, is to be considered lex specialis with regard to Article 10.
63. Furthermore, it considers that at the heart of the present case lies the question of whether the correct balance was struck between that right and the right to privacy of data subjects as embodied in domestic data protection legislation and as protected under Article 8 of the Convention. Indeed, it follows from the applicable law, the parties’ arguments and the approach applied by the national authorities, in particular the Supreme Administrative Court (see paragraphs 16 and 29-35 above and paragraphs 67 and 71 below), that the balancing exercise should focus on the Article 8 rights of data subjects and the Article 9 rights of the applicant community. For these reasons, the Court will outline some of the general principles deriving from the Court’s case-law on Article 9, on the one hand, and the right to privacy under Article 8 in the particular context of data protection, on the other (see paragraphs 72-78 below).
B. Admissibility
64. The Government did not raise any specific objection as to the admissibility of this part of the application and only maintained that it was manifestly ill-founded.
65. The Court notes that this part of the application is not manifestly ill‑founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.
C. Merits
1. The parties’ submissions
(a) The Government
66. The Government maintained that the applicant community had not been prohibited from taking notes containing personal data linked to its door-to-door preaching activity, but that it had to ensure that the processing of such data was done in accordance with the Personal Data Act, for instance, by asking for the consent of the person to whom the personal data related. The requirement of consent could not be deemed to amount to an interference within the meaning of Article 9 of the Convention as the applicant community had not been prohibited from manifesting its religion or belief either alone or in community with others. Even if the Court were to consider that there had been an interference, it had been prescribed by law and had been necessary in a democratic society in the interests of the protection of the rights and freedoms of others.
67. The relevant order had been based on the Personal Data Act in force at the time of the proceedings. That law was formulated with sufficient precision and aimed to protect the rights and freedoms of others. The Supreme Administrative Court had taken into account the fact that individuals whose personal data had been collected were entitled to trust that their data were not collected without their knowledge and consent. They also had a legitimate expectation, guaranteed by law, that they would have access to the data and, if necessary, the right to require that the data be corrected or deleted. Ensuring the rights of data subjects therefore inspired confidence rather than distrust in the applicant community’s activities. The consent requirement and the fact that it did not interfere with the core areas of the applicant community’s freedom of religion or freedom of expression had thus been proportionate.
68. Any processing of personal data had to be justifiable by some criterion laid down by law, and the prior publicity of personal data was not such a criterion. Even where information about some personal data was publicly available (such as the person’s name, address or telephone number), this did not mean that such data could be freely processed. Although the Personal Data Act was applicable to the applicant community, it had not restricted its freedom of religion or its right to freedom of expression, including the right to impart information and ideas.
(b) The applicant community
69. The applicant community maintained that no examples of notes allegedly violating the Personal Data Act had been adduced in evidence during the domestic proceedings. However, it confirmed that individual Jehovah’s Witnesses might choose to make a personal, private note when no one was at home, when an occupant asked that no further visits be made and if an occupant requested or agreed to a “return visit” or “Bible study”.
70. It argued that the interference under Article 9 of the Convention had not been “prescribed by law” since the Supreme Administrative Court had wrongly applied domestic law when it had held that the exemption for the processing of personal data for purely personal purposes or for comparable ordinary and private purposes did not apply to a note taken by Jehovah’s Witnesses, and when it had concluded that Jehovah’s Witnesses engaged in their individual evangelism on behalf of and for the benefit of the applicant community. Their door-to-door evangelism was a hallmark of their individual religious activity, and the applicant community was a legal entity with the sole function of supporting their “deeply personal religious activity”, such as by importing religious literature and renting or owning properties for religious services. Similarly, it had been wrong to hold that the applicant community was the “controller” jointly with individual Jehovah’s Witnesses who took notes containing personal data. Any personal data included in a note was not shared with anyone.
71. Furthermore, the applicant community maintained that the interference had not pursued a pressing social need. The privacy interests of people whose personal data were noted down were either non-existent or de minimis as such information was publicly available. The recording of conversations by an interlocutor and the private use of such recordings did not violate Article 8 of the Convention per se. The interference had also been excessive and disproportionate, impeding the personal expression of faith and dialogue integral to a free exchange of religious, atheistic, agnostic and philosophical ideas or views. It was disproportionate to require, when taking a brief note containing personal data, that an individual Jehovah’s Witness first establish a legal basis for doing so by obtaining the “consent” of the interlocutor, then provide him or her with the identity of the “controller”, explain to him or her the purpose of the processing of the data, and then explain the right of access, rectification and erasure, in addition to complying with the many other requirements applicable to “controllers”. It was impossible to obtain consent when occupants were not at home. Even when an occupant agreed to a follow-up visit, asking for consent would have a chilling effect, subjecting private religious conversations to suspicion and distrust, and creating an erroneous and stigmatising impression that the evangelism was a de facto marketing endeavour. The applicant community further argued that the State had failed to provide “convincing and compelling reasons” for the interference.
2. The Court’s assessment
(a) General principles
(i) Article 9 of the Convention
72. The freedom of thought, conscience and religion, as enshrined in Article 9 and as acknowledged in the Court’s case-law, is one of the foundations of a “democratic society” within the meaning of the Convention. This freedom is, in its religious dimension, one of the most vital elements that go to make up the identity of believers and their conception of life, but it is also a precious asset for atheists, agnostics, sceptics and the unconcerned. The pluralism indissociable from a democratic society, which has been dearly won over the centuries, depends on it. That freedom entails, inter alia, freedom to hold or not to hold religious beliefs and to practise or not to practise a religion (see, among other authorities, Kokkinakis v. Greece, 25 May 1993, § 31, Series A no. 260-A; Buscarini and Others v. San Marino [GC], no. 24645/94, § 34, ECHR 1999-I; S.A.S. v. France [GC], no. 43835/11, § 124, ECHR 2014 (extracts); and İzzettin Doğan and Others v. Turkey [GC], no. 62649/10, § 103, 26 April 2016).
73. Religious freedom is primarily a matter of individual thought and conscience. This aspect of the right set out in the first paragraph of Article 9, to hold any religious belief and to change religion or belief, is absolute and unqualified. However, as further set out in Article 9 § 1, freedom of religion also encompasses the freedom to manifest one’s belief alone and in private but also to practise in community with others and in public. The manifestation of religious belief may take the form of worship, teaching, practice and observance. Bearing witness in words and deeds is bound up with the existence of religious convictions (see Kokkinakis, cited above, § 31; and Leyla Şahin v. Turkey [GC], no. 44774/98, § 105, ECHR 2005-XI). Since the manifestation by one person of his or her religious belief may have an impact on others, the drafters of the Convention qualified this aspect of freedom of religion in the manner set out in Article 9 § 2. This second paragraph provides that any limitation placed on a person’s freedom to manifest religion or belief must be prescribed by law and necessary in a democratic society in pursuit of one or more of the legitimate aims set out therein (see Eweida and Others v. the United Kingdom, nos. 48420/10 and 3 others, § 80, ECHR 2013 (extracts)).
74. The fundamental nature of the rights guaranteed in Article 9 § 1 of the Convention is also reflected in the wording of the paragraph providing for limitations on them. Unlike the second paragraphs of Articles 8, 10 and 11 of the Convention, which cover all the rights mentioned in the first paragraphs of those Articles, that of Article 9 refers only to “freedom to manifest one’s religion or belief”. In so doing, it recognises that in democratic societies, in which several religions coexist within one and the same population, it may be necessary to place restrictions on this freedom in order to reconcile the interests of the various groups and ensure that everyone’s beliefs are respected (see Kokkinakis, cited above, § 33). At the same time, it emphasises the primary importance of the right to freedom of thought, conscience and religion and the fact that a State cannot dictate what a person believes or take coercive steps to make him change his beliefs (see Ivanova v. Bulgaria, no. 52435/99, § 79, 12 April 2007).
75. The Court also reiterates that freedom to manifest one’s religion includes in principle the right to express one’s religious views by imparting them with others and the right “to try to convince one’s neighbour”, for example through “teaching”, failing which “freedom to change [one’s] religion or belief”, enshrined in Article 9, would be likely to remain a dead letter (see Kokkinakis, cited above, § 31). The act of imparting information about a particular set of beliefs to others who do not hold those beliefs - known as missionary work or evangelism in Christianity - is protected under Article 9 alongside with other acts of worship, such as the collective study and discussion of religious texts, which are aspects of the practice of a religion or belief in a generally recognised form (see Kokkinakis, cited above, § 48, and Kuznetsov and Others v. Russia, no. 184/02, § 57, 11 January 2007).
(ii) Article 8 of the Convention, the right to privacy and data protection
76. The Court reiterates that the concept of “private life” is a broad term not susceptible to exhaustive definition (see S. and Marper v. the United Kingdom [GC], nos. 30562/04 and 30566/04, § 66, ECHR 2008, and Vukota-Bojić v. Switzerland, no. 61838/10, § 52, 18 October 2016). Private life has been held to include, inter alia, the right to live privately, away from unwanted attention (see Smirnova v. Russia, nos. 46133/99 and 48183/99, § 95, ECHR 2003 IX (extracts)). Indeed, the Court has held that there is a zone of interaction of a person with others, even in a public context, which may fall within the scope of “private life” for the purposes of Article 8 of the Convention (see Couderc and Hachette Filipacchi Associés v. France [GC], no. 40454/07, § 83, ECHR 2015 (extracts), and P.G. and J.H. v. the United Kingdom, no. 44787/98, § 56, ECHR 2001-IX).
77. The Court reiterates that the right to protection of personal data is guaranteed by the right to respect for private life under Article 8 (see, most recently, L.B., cited above, §103). In this context, the Court has, on a number of occasions, referred to the Data Protection Convention (see paragraph 39 above), which itself underpins the Data Protection Directive relevant for the present case. That Convention, like the Data Protection Directive (see paragraph 40 above), defines personal data in Article 2 as “any information relating to an identified or identifiable individual” (see Amann v. Switzerland [GC], no. 27798/95, § 65, ECHR 2000-II).
78. Where there has been compilation of data on a particular individual, processing or use of personal data or publication of the material concerned in a manner or degree beyond that normally foreseeable, private life considerations arise (see Uzun v. Germany, no. 35623/05, §§ 44-46, ECHR 2010 (extracts); see also Rotaru v. Romania [GC], no. 28341/95, §§ 43-44, ECHR 2000‑V; P.G. and J.H. v. the United Kingdom, cited above, § 57; Amann, cited above, §§ 65-67; and M.N. and Others v. San Marino, no. 28005/12, §§ 52-53, 7 July 2015).
79. The protection of personal data is of fundamental importance to a person’s enjoyment of his or her right to respect for private and family life as guaranteed by Article 8 of the Convention. Domestic law must afford appropriate safeguards to prevent any such use of personal data as may be inconsistent with the guarantees of this Article (see S. and Marper, cited above, § 103). Article 8 thus provides for the right to a form of informational self-determination, allowing individuals to rely on their right to privacy as regards data which, albeit neutral, are collected, processed and disseminated collectively and in such a form or manner that their Article 8 rights may be engaged (see Satakunnan Markkinapörssi Oy and Satamedia Oy, cited above, § 137).
(b) Application to the present case
(i) Existence of an interference
80. The Court notes that the applicant community was prohibited from collecting and processing the personal data of data subjects in connection with the door-to-door preaching of its adherents to the extent that that activity did not meet the requirements of sections 8 and 12 of the Personal Data Act. In particular, door-to-door preaching required the unambiguous or express consent of data subjects when personal and sensitive data, within the meaning of sections 3(1) and 11 of the Personal Data Act (see paragraphs 32 and 34 above), were being collected and processed. The Board stated that its order did not prohibit door-to-door preaching per se (see paragraph 8 above). Nor did it mean, as held by the Supreme Administrative Court, that “personal data [could] not be processed in any circumstances in the context of door-to-door preaching” (see paragraph 29 above).
81. The Court is ready to accept that the application of the consent requirement to the collection and processing of personal and sensitive data in the course of door-to-door preaching, a religious activity intended to manifest or spread the faith of the Jehovah’s Witnesses (see paragraph 62 and 63 above), constituted an interference with the applicant community’s rights under Article 9 of the Convention.
82. In the light of paragraph 2 of Article 9, such an interference must be “prescribed by law”, have one or more legitimate aims and be “necessary in a democratic society”.
(ii) Prescribed by law
83. It is undisputed by the parties that the impugned interference had a legal basis in the Personal Data Act, as in force at the material time. However, the applicant community claimed that the Supreme Administrative Court had wrongly applied domestic law to the circumstances of the case (see paragraph 70 above). The Government, for their part, submitted that the Personal Data Act was formulated with sufficient precision (see paragraph 67 above).
84. The Court reiterates its established case-law as to the meaning of the term “prescribed by law” under Article 9 of the Convention and the quality requirements the domestic law needs to satisfy. It further reiterates that the role of adjudication vested in the national courts is precisely to dissipate any interpretational doubts; the Court’s power to review compliance with domestic law is thus limited, as it is primarily for the national authorities, notably the courts, to interpret and apply domestic law (see Kudrevičius and Others v. Lithuania [GC], no. 37553/05, §§ 108-10, ECHR 2015, with further references).
85. The Court observes that the Personal Data Act transposed the Data Protection Directive into Finnish law (see paragraph 14 above). Before the Supreme Administrative Court reached its final conclusion on the matter, it sought guidance from the CJEU on the interpretation of the Data Protection Directive. The Court has regularly emphasised the importance, for the protection of fundamental rights in the EU, of the judicial dialogue conducted between the domestic courts of EU member States and the CJEU in the form of references from the former for preliminary rulings by the latter (see Bosphorus Hava Yolları Turizm ve Ticaret Anonim Şirketi v. Ireland [GC], no. 45036/98, § 164, ECHR 2005‑VI; Avotiņš v. Latvia [GC], no. 17502/07, §§ 105 and 109, ECHR 2016; and Satakunnan Markkinapörssi Oy and Satamedia Oy, cited above, § 150).
86. In the judgment of 10 July 2018, the CJEU gave an authoritative interpretation of the Data Protection Directive relevant for the main legal issues contested by the applicant community. In particular, it held “that the collection of personal data by members of a religious community in the course of door-to-door preaching and the subsequent processing of those data [did] not constitute ... the processing of personal data carried out by a natural person in the course of a purely personal or household activity, within the meaning of Article 3(2), second indent, [of the Data Protection Directive]” (see paragraph 20 above). The Court notes that an identical exemption was included in section 2(3) of the Personal Data Act (see paragraph 31 above). The CJEU also held that “a religious community [was] a controller, jointly with its members who engage[d] in preaching, for the processing of personal data carried out by the latter in the context of door-to-door preaching organised, coordinated and encouraged by that community, without it being necessary that the community ha[d] access to those data, or to establish that that community ha[d] given its members written guidelines or instructions in relation to the data processing” (see paragraph 22 above). Lastly, it confirmed that “the concept of a ‘filing system’, referred to by [Article 2(c) of the Data Protection Directive], cover[ed] a set of personal data collected in the course of door-to-door preaching, consisting of the names and addresses and other information concerning the persons contacted, if those data [were] structured according to specific criteria which, in practice, enable[d] them to be easily retrieved for subsequent use” (see paragraph 21 above).
87. Following the CJEU’s guidance, the Supreme Administrative Court provided a similar interpretation of the relevant provisions of the Personal Data Act and applied them taking account of the established facts relevant for the present case (see paragraphs 55 and 56 above). Even if the applicant community’s case was the first of its kind under the Personal Data Act, that would not render the interpretation and application by the domestic authorities arbitrary or unpredictable (see Kudrevičius, § 115, and Satakunnan Markkinapörssi Oy and Satamedia Oy, § 150, both cited above). Having regard to its limited jurisdiction as regards the interpretation of the domestic law by the national courts (see Anheuser-Busch Inc. v. Portugal [GC], no. 73049/01, § 83, ECHR 2007‑I) and the available material in its possession, the Court does not consider that the manner in which the Supreme Administrative Court interpreted the Personal Data Act was arbitrary and unreasonable.
88. In the light of the above, the Court concludes that the interference complained of was “prescribed by law” within the meaning of Article 9 § 2 of the Convention.
(iii) Legitimate aim
89. Taking into account the aims of the Personal Data Act (see paragraph 30 above) and the Data Protection Directive as interpreted by the CJEU (see paragraph 20 above, paragraph 35 of the CJEU’s judgment), as well as the established case-law of the Court (see paragraph 79 above), it is clear that the interference with the applicant community’s right to freedom of religion pursued the legitimate aim of protecting “the rights and freedoms of others”, data subjects in the present case, within the meaning of Article 9 § 2 of the Convention.
(iv) Necessary in a democratic society
90. The core question in the instant case is whether the interference with the applicant community’s right to freedom of religion (see paragraph 80 above) was “necessary in a democratic society” and whether, in answering this question, the domestic courts struck a fair balance between that right and the right to respect for private life of data subjects (see paragraph 63 above).
91. As indicated above, when exercising its supervisory function, the Court’s task is not to take the place of the national courts but rather to review, in the light of the case as a whole, whether the decisions they have taken pursuant to their power of appreciation are compatible with the provisions of the Convention relied on. Where the balancing exercise has been undertaken by the national authorities in conformity with the criteria laid down in the Court’s case-law, the Court would require strong reasons to substitute its view for that of the domestic courts (see, mutatis mutandis, Satakunnan Markkinapörssi Oy and Satamedia Oy, cited above, § 164).
92. Turning to the present case, the Court notes that the Personal Data Act aimed to ensure protection of the right to respect of private life, including the right to privacy of data subjects. The Act required that the collection and processing of personal and sensitive data meet certain requirements, in particular the unambiguous or express consent of data subjects. Those requirements had their origin in the Data Protection Directive, which has been transposed into the legislation of the EU member States and has thereby become applicable in those Council of Europe member States.
93. In the absence of any evidence and counter-arguments by the applicant community, the Supreme Administrative Court established that individual Jehovah’s Witnesses, at least in general, did not ask data subjects to consent expressly to the processing of personal data, nor did the applicant community instruct them to do so (see paragraph 28 above). The applicant community did not contest that finding. The court further held that the Board’s order prohibiting the applicant community from collecting and processing personal and sensitive data in the course of door‑to‑door preaching without the unambiguous consent of data subjects “[had] not [been] made ... in an attempt to hinder the religious practices of individual Jehovah’s Witnesses; rather, it [had been] made for reasons having to do with the processing of personal data”.
This was because “the right to privacy ... also belong[ed] to people whose personal data [was] being processed, and they [had] the right to expect that provisions regarding the processing of personal data be complied with” (see paragraph 29 above).
In finding that the “purely personal or household” exemption clause did not apply to the collection and processing of personal data by individual Jehovah’s Witnesses during their door-to-door preaching, the court noted that part of the personal data in question could be available from public sources, but considered this possibility immaterial for its conclusions. Accordingly, the court examined the matter by carrying out a balancing exercise between the privacy rights of data subjects and the applicant community’s right to freedom of religion.
94. The Court concurs with the Supreme Administrative Court that data subjects had a reasonable expectation of privacy with regard to personal and sensitive data being collected and processed in the course of door‑to‑door preaching. The fact that some personal data might be already in the public domain neither reduces this expectation nor does it mean that such data need less protection (see Satakunnan Markkinapörssi Oy and Satamedia Oy, cited above, § 134). This approach finds support in the relevant jurisprudence of the CJEU. In the case Satakunnan Markkinapörssi Oy and Satamedia Oy (C-73/07, EU:C:2008:727, 16 December 2008), the Grand Chamber of the CJEU held that “a general derogation from the application of the [Data Protection Directive] in respect of published information would largely deprive the directive of its effect” and that “[i]t would be sufficient for the Member States to publish data in order for those data to cease to enjoy the protection afforded by the directive” (see paragraph 48 of the judgment). This finding was confirmed and reinforced in the case Google Spain and Google (C‑131/12, EU:C:2014:317, judgment of 13 May 2014), in which the CJEU argued that “the operations referred to in Article 2(b) of Directive 95/46 [had to] also be classified as [data] processing where they exclusively concern[ed] material that [had] already been published in unaltered form in the media” (see paragraph 30 of that judgment).
95. The requirement of consent by the data subject is to be considered an appropriate and necessary safeguard with a view to preventing any communication or disclosure of personal and sensitive data inconsistent with the guarantees in Article 8 of the Convention in the context of door‑to‑door preaching by individual Jehovah’s Witnesses. In the absence of any convincing arguments by the applicant community, the Court cannot discern how simply asking for, and receiving, the data subject’s consent would hinder the essence of the applicant community’s freedom of religion. The applicant community failed to present any supporting evidence of the alleged “chilling effect” of the Board’s order, notwithstanding the lapse of time since the decision of the Supreme Administrative Court (see paragraphs 24 and 71 above).
96. It further notes that the Personal Data Act applied without distinction to all religious communities and religious activities.
97. Lastly, no fine, although requested (see paragraph 6 above), was imposed on the applicant community (see paragraph 11 above).
98. In the light of the aforementioned considerations, there are no strong reasons for the Court to substitute its view for that of the domestic courts and set aside the balancing done by them. It is satisfied that the reasons relied upon were both relevant and sufficient to show that the interference complained of was “necessary in a democratic society” and that the authorities of the respondent State acted within their margin of appreciation in striking a fair balance between the competing interests at stake.
99. There has accordingly been no violation of Article 9 of the Convention.
II. OTHER Alleged violations of the Convention
A. Alleged violation of Article 8 of the Convention
100. The applicant community complained under Article 8 of the Convention that the Board’s order had violated the privacy rights of individual Jehovah’s Witnesses, because they had been “prohibited, on pain of a sanction and fine, from making notes containing their personal opinions and observations of conversations to which they were party”. In this connection, the applicant community submitted that a person’s name and address were data widely available in the public domain.
101. Article 8 of the Convention reads as follows:
“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.”
1. The parties’ submissions
(a) The Government
102. The Government submitted that it was undisputed that the only applicant in the present application was the Jehovah’s Witnesses religious organisation, not any single individual Jehovah’s Witness. No extension could be made such that a church or ecclesiastical body could, on behalf of its adherents, exercise their rights guaranteed by Article 8 of the Convention. Furthermore, the applicant community could not be regarded as a direct victim of any alleged violation of Article 8. Accordingly, the applicant community lacked the victim status required by Article 34 of the Convention. Moreover, since the applicant community had not invoked Article 8 of the Convention or raised similar arguments in substance in its own name before the domestic courts, it had failed to exhaust the effective domestic remedies.
(b) The applicant community
103. The applicant community maintained that the Court had repeatedly held in its case-law that a church or ecclesiastical body could itself exercise on behalf of its adherents the rights guaranteed by Article 9 of the Convention (reference was made to Metropolitan Church of Bessarabia and Others v. Moldova, no. 45701/99, § 101, ECHR 2001-XII, and Association Les Témoins de Jéhovah v. France, no. 8916/05, § 51, 30 June 2011). By extension, this also applied to the privacy rights of individual adherents guaranteed by Article 8 of the Convention, particularly where those privacy rights were inextricably linked to the exercise of a religious belief or practice as in the present case (reference was made to Beizaras and Levickas v. Lithuania, no. 41288/15, §§ 78-81, 14 January 2020; Gorraiz Lizarraga and Others v. Spain, no. 62543/00, §§ 37-39, ECHR 2004-III; and Karastelev and Others v. Russia, no. 16435/10, §§ 72 and 75, 6 October 2020).
104. Moreover, it had “raised the privacy rights of individual Jehovah’s Witnesses” in the domestic proceedings. It had argued in its submissions to the Board, the Administrative Court and the CJEU that the practice of individual Jehovah’s Witnesses taking private notes of a shared religious conversation was inherently of a “personal” and “private nature”, thus raising the substance of Article 8 of the Convention. It had expressly relied on Article 8 of the Convention in its written material to the Supreme Administrative Court, which had addressed the issue in its decision of 17 December 2018 (paragraph 29 above).
2. The Court’s assessment
105. According to the Court’s understanding of the applicant community’s complaint and its submissions (see paragraphs 100, 103 and 104 above), the allegations under this head concern only individual Jehovah’s Witnesses’ privacy rights under Article 8 of the Convention, which have been allegedly affected by the order prohibiting the collection and processing of personal data in the context of door-to-door preaching without the explicit consent of data subjects. Accordingly, the Court will confine its examination to the complaint as formulated by the applicant community.
106. The Court notes at the outset that the question of victim status, for the purposes of Article 34 of the Convention, is, in the instant case, closely linked to the requirement of exhaustion of domestic remedies contained in Article 35 § 1. For these reasons, it will outline some of the relevant general principles deriving from the Court’s case-law.
108. The general principles regarding the exhaustion rule under Article 35 § 1 of the Convention are set out in Vučković and Others v. Serbia ((preliminary objection) [GC] nos. 17153/11 and 29 others, §§ 70‑77, 25 March 2014).
109. The Court observes that the only applicant before it is the Jehovah’s Witnesses religious community, not any of its individual members (see, conversely, Beizaras and Levickas, § 80; and Gorraiz Lizarraga and Others, § 38; all cited above). Furthermore, the applicant community was the only party in the proceedings before the domestic authorities. The only attempt by two individual adherents to join the domestic proceedings was to no avail (see paragraph 12 above). The Administrative Court dismissed the appeal submitted by the individual members, holding that the Board’s order had not been addressed to them and could not be considered to have directly affected their rights, obligations or interests. These findings remained uncontested before the Supreme Administrative Court (see paragraph 13 above). The CJEU also unambiguously established that “the members of the Jehovah’s Witnesses Community whose collection of personal data [was] the basis for the questions referred [were] not parties to the main proceedings” (see paragraph 19 above, paragraph 32 of the CJEU’s judgment).
110. Furthermore, it is clear from the case file that until 20 September 2018 the applicant community did not raise in its submissions to the domestic authorities any Article 8 complaints, in form or in substance, and referred to Article 8 exclusively in the context of data subjects’ rights (see paragraphs 12 and 16 above). Its arguments that a person’s name and address were data widely available in the public domain and that therefore data subjects had “no reasonable expectation of privacy” were examined in the context of its complaint under Article 9 (see paragraph 94 above) and are of no importance for its grievances under this head.
111. It was only in its last written submissions to the Supreme Administrative Court of 20 September 2018, that is, more than five years after the proceedings had been instituted and subsequent to the preliminary ruling proceedings before the CJEU, that the applicant community argued, for the first time, that the Board’s order had violated individual Jehovah’s Witnesses’ right to privacy under Article 8 of the Convention. However, that complaint and the passing reference in reply by the Supreme Administrative Court (see paragraph 29 above) must be interpreted in the context of the scope of the case as defined by the Board (see paragraph 8 above) and the Supreme Administrative Court (see paragraphs 17 and 24 above), namely that it concerned only the applicant community and not its individual adherents (see, Yusufeli İlçesini Güzelleştirme Yaşatma Kültür Varlıklarını Koruma Derneği, cited above, §§ 42-44).
112. Accordingly, this complaint must be declared inadmissible as incompatible ratione personae with the provisions of the Convention and must also be rejected under Article 35 §§ 3 and 4 of the Convention for non‑exhaustion of domestic remedies.
B. Alleged violation of Article 14 and Article 1 of Protocol No. 12 to the Convention
113. The applicant community complained of “religious discrimination” under Article 14, taken in conjunction with Articles 8, 9 and 10 of the Convention and under Article 1 of Protocol No. 12 to the Convention. It alleged that its religious activity had “received less favourable treatment” without “any objective and reasonable justification” in comparison with “journalism or artistic or literary expression”, as well as the Evangelical Lutheran Church and the Orthodox Church, which were exempted from penalties under the Data Protection Act.
114. Article 14 and Article 1 of Protocol No. 12 read as follows:
Article 14 (prohibition of discrimination)
“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”
Article 1 of Protocol No. 12 (General prohibition of discrimination)
“1. The enjoyment of any right set forth by law shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.
2. No one shall be discriminated against by any public authority on any ground such as those mentioned in paragraph 1.”
1. The parties’ submissions
(a) The Government
115. The Government argued that the applicant community had not invoked Article 14, read in conjunction with Articles 8 and 10, or Article 1 of Protocol No. 12 to the Convention or raised similar arguments in substance before the domestic courts. Furthermore, they submitted that it could not be considered a victim of any violation of Article 14, read in conjunction with Articles 8 and 10 and that, accordingly, its complaint was incompatible ratione materiae with the provisions of the Convention. The fact that it had raised, on a very technical level, allegations of discrimination on the grounds of religious activities in its last submissions to the Supreme Administrative Court, could not be deemed to be in line with the exhaustion requirement. The Government also submitted arguments about the merits of the complaint.
(b) The applicant community
116. The applicant community maintained that the complaint under this head had been raised at all stages of the domestic proceedings, and had been referred to and addressed by the Supreme Administrative Court in its decision of 17 December 2018. It further submitted arguments regarding the substance of its complaint under this head.
2. The Court’s assessment
117. The Court considers that the applicant community’s complaint under this head must be examined in the context of the substantive scope of the case as defined by the domestic authorities, namely that it concerned the lawfulness of the processing of personal data in connection with the door‑to‑door preaching of individual Jehovah’s Witnesses (see paragraph 8 above). The domestic proceedings mainly concerned legal issues relating to the nature of the collection and processing of personal data of data subjects in the context of door-to-door preaching, and whether the applicant community could be regarded as a “controller” within the meaning of the Personal Data Act. They were instituted before the Board, as the competent body to decide those issues. The preliminary ruling proceedings before the CJEU were initiated in the same vein (see paragraph 17 above). Furthermore, and as noted above, the case concerned only the applicant community and not its individual members (see paragraph 108 above).
118. In the domestic proceedings, the applicant community did not raise any allegations of discrimination, either under Article 14 or Article 1 of Protocol No. 12, before the Board and the Administrative Court (see paragraphs 7 and 12 above). Allegations of discrimination were raised, for the first time and only in respect of individual Jehovah’s Witnesses, in its submissions to the Supreme Administrative Court on 20 April 2015 and 20 September 2018 (see paragraphs 16 and 18 above). It should be noted that the applicant community made no reference in those submissions to the “Evangelical Lutheran Church and the Orthodox Church” in respect of which it has alleged, for the first time before this Court, that it was treated differently without any objective and reasonable justification (see paragraph 113 above). The Court notes that the exemption of the said Churches from imposing an administrative fine was firstly introduced into Finnish law with the Data Protection Act that entered into force on 1 January 2019 after the proceedings before the Supreme Administrative Court had been completed (see paragraph 37 above). Accordingly, it cannot be accepted that the statement of the Supreme Administrative Court that “[t]he [Board’s] decision [would] not subject the Community or individual Jehovah’s Witnesses to different treatment in comparison with other religious communities or their members” concerned the applicant community’s allegations regarding the said Churches (see paragraph 29 above).
119. Furthermore, the Supreme Administrative Court’s statement that “the [Board’s] decision ... [did] not violate the provisions and regulations on the prohibition of discrimination” was general in nature and did not follow any examination by the lower authorities, which, as noted above, were not invited to pronounce themselves, and consequently, were divested of the opportunity to put right the alleged violation. Such a succinct statement must also be seen in the context of the substantive scope of the case before the domestic authorities (see paragraph 117 above).
120. In such circumstances, the Court considers that the applicant community did not adequately raise its allegations under this head before the domestic authorities. Accordingly, the complaint under this head must be rejected under Article 35 §§ 1 and 4 of the Convention for non‑exhaustion of domestic remedies. Given this conclusion, it is not necessary for the Court to separately examine the Government’s objection of incompatibility ratione materiae (see paragraph 115 above).
FOR THESE REASONS, THE COURT, UNANIMOUSLY,
1. Declares the complaints under Articles 6 and 9 of the Convention admissible and the remainder of the application inadmissible;
2. Holds that there has been no violation of Article 6 of the Convention on account of the lack of an oral hearing;
3. Holds that there has been no violation of Article 9 of the Convention on account of the incompatibility of the applicant community’s religious activities with the data protection regulations.
Done in English, and notified in writing on 9 May 2023, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Hasan Bakırcı Arnfinn Bårdsen
Registrar President
BAILII: