Case: Reklos and Davourlis v. Greece
Judgement date: 15 January 2009
Topic: Right to the protection of one’s image
Aspect: Private persons

Summary of the facts:
This case concerned the photographs of a new-born baby taken in a private clinic without the parents’ prior consent, and the retention of the negatives. Immediately after birth the baby had been placed in a sterile unit to which only medical staff at the clinic had access. The following day the mother was presented with two photographs of the baby, shown facing the camera, taken inside the sterile unit by a professional photographer based in the clinic. The applicants complained of the photographer’s intrusion into an environment to which only medical staff should have had access, and the possible annoyance caused to the infant by being photographed from the front. Faced with the clinic’s indifference to their complaints and its refusal to hand over the negatives of the photographs, the applicants brought an action for damages, which was dismissed as unfounded.

Summary of the Court's findings:
The Court held that there had been a violation of Article 8 (right to respect for private life) of the Convention.

The facts:
I. THE CIRCUMSTANCES OF THE CASE
6. The applicants are the parents of Anastasios Reklos, who was born on 31 March 1997 in a private clinic, I. Immediately after birth the baby was placed in a sterile unit under the constant supervision of the clinic ’ s staff. Only its doctors and nurses had access to this unit.
7. On 1 April 1997 two photographs of the new-born baby, taken face on, were presented to the second applicant. The photographs had been taken inside the sterile unit by a professional photographer located on the first floor of the clinic. The clinic informed its clients that photography services were available.
8. The applicants complained to the clinic ’ s management about the photographer ’ s intrusion into a unit to which only the clinic ’ s staff should have had access, adding that the new-born baby was likely to have been upset by the taking of photographs face on and, most importantly, that they had not given their prior consent.
9. Faced with the clinic ’ s indifference to their protests and refusal to hand over to them the negatives of the photographs, on 25 August 1997 the applicants brought an action for damages before the Athens Court of First Instance, under Articles 57, 59 and 932 of the Civil Code. Acting on behalf of their child, they claimed the sum of 4,000,000 drachmas (about 11,739 euros) in respect of non-pecuniary damage for the alleged infringement of their child ’ s personality rights.
10. On 24 June 1998 the Athens Court of First Instance dismissed their action as unfounded. It found as follows:
“ ... it has not been possible to establish, from the circumstances in which the offending photographs were taken, that the photographer ’ s conduct was unlawful. In any event, the personality rights of the new-born baby cannot have been affected because, just after birth, his psychological and emotional environment had not yet been formed and the recording of his face on a photograph cannot have had any negative consequences for his subsequent development.” (decision no. 3049/1998)
11. On 22 September 1998 the applicants appealed. On 14 September 1999 the Athens Court of Appeal upheld the judgment of the court below. It found in particular as follows:
“ ... according to the conclusions drawn from common practice, the personality, emotional environment and mental maturity of a new-born baby, only one day old, are not sufficiently developed for it to perceive an infringement of its personality rights, as has been alleged, or for its inner balance to be upset ...”. (decision no. 7758/1999).
12. On 28 August 2002 the applicants, represented by the first applicant, lodged an appeal with the Court of Cassation. In their notice of appeal they pointed out their child ’ s age at the material time and referred to all the considerations that had led the court below to dismiss their appeal. Their single ground of appeal on points of law concerned the Court of Appeal ’ s interpretation of Articles 57 and 932 of the Civil Code. In their view, that interpretation ran counter to Article 2 of the Greek Constitution and to Article 8 of the Convention. In particular, the applicants claimed that the criterion used by the domestic courts in determining whether the image and, a fortiori, the personality of an individual, could be protected, had been incompatible with the rights to “dignity” and to “the protection of private life”. In addition, the applicants argued that the criterion in question was also potentially dangerous, especially if it were to be applied to disabled children, as they might never reach the requisite level of “mental maturity” with the result that their image and, a fortiori, personality would not be protected.
13. On 8 July 2004 the Court of Cassation dismissed the appeal on points of law on the ground that it lacked precision. Relying on Articles 118 and 566 § 1 of the Code of Civil Procedure, the court found that the applicants “[had] not indicate[d] in their appeal the factual circumstances on which the Court of Appeal had based its decision dismissing their appeal” (judgment no. 990/2004).

Relevant law and the Court's assessment:
II. RELEVANT DOMESTIC LAW AND PRACTICE
14. Article 2 of the Greek Constitution provides as follows:
“1. Respect for and protection of the value of the human being constitute the primary duty of the State.
2. Greece, adhering to the generally recognised rules of international law, pursues the furtherance of peace and justice and the fostering of friendly relations between peoples and States.”
15. The relevant Articles of the Civil Code read as follows:
Article 34
“Everyone shall have the capacity to enjoy rights and assume duties.”
Article 35
“The person shall begin to exist at birth and cease to exist on death.”
Article 57
“Anyone whose personality is the object of unlawful interference shall be entitled to demand that such interference cease and also not be repeated in the future ...
In addition, claims for damages in accordance with the provisions relating to unlawful acts shall not be excluded.”
Article 59
“In the cases provided for in the two preceding Articles, the court may, in the judgment it gives upon the application of the injured party, and regard being had to the nature of the interference, also order the liable party to make reparation for non-pecuniary damage. Such reparation may consist in the payment of a sum of money, publication of the court ’ s decision and any other measure that is deemed appropriate in the circumstances of the case.”
Article 914
“Any person who, contrary to the law, causes damage to another person by his or her fault, shall make reparation for such damage”.
Article 919
“Any person who intentionally causes damage to another person by acting contrary to moral standards shall make reparation for such damage”.
Article 932
“Independently of any compensation due as a result of pecuniary damage caused by an unlawful act, the court may award reasonable monetary reparation, as it sees fit, for non-pecuniary damage. This provision shall enure in particular to the benefit of anyone who has sustained unlawful interference with health, honour or decency, or who has been deprived of liberty. In the event of death, the reparation may be awarded to the victim ’ s family by way of damages for pain and suffering”.
16. The relevant provisions of the Code of Civil Procedure provide as follows:
Article 118
“Notices of appeal served between parties or filed in the court shall indicate: ....
(4) the subject-matter of the appeal, stated clearly, precisely and succinctly ...”
Article 566 § 1
“Appeals on points of law shall contain the information required by Articles 118 to 120, cite the judgment appealed against, state the grounds of appeal, whether the appeal is against all or part of the impugned decision, and include a submission on the merits of the case.”
17. According to the case-law of the Court of Cassation, appeals on points of law must indicate the substantive rule that has been breached, must show how there has been a mistake of law, in other words where the breach can be found in the construction or application of the rule in question, and must also include a statement of the facts on which the Court of Appeal based its decision dismissing the appeal (Court of Cassation, nos. 372/2002 and 388/2002).
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION
18. The applicants complained that the dismissal by the Court of Cassation of their appeal on points of law on the ground that it was imprecise had breached their right of access to a court, as guaranteed by Article 6 § 1 of the Convention, of which the relevant part reads:
“In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing within a reasonable time by [a] ... tribunal ...”
A. The parties ’ submissions
1. The Government
19. The Government alleged, first, that the appeal on points of law had been declared inadmissible on account of its imprecise nature. If the applicants had submitted their complaint in compliance with the admissibility rules governing the lodging of appeals on points of law, it would not have been dismissed. The Government thus claimed that the applicants had not validly exhausted the domestic remedies.
20. On the merits, the Government argued that the task of the Court of Cassation was not to re-examine the facts of the case but to assess the lawfulness of the decision appealed against. The Government added that the question whether or not the admissibility rule applied by the Court of Cassation was severe was purely theoretical. The important thing in the present case was that the Court of Cassation had simply applied its settled case-law as regards the conditions of admissibility of an appeal on points of law. In particular, according to that case-law, when an ordinary appeal had been dismissed as unfounded, that is to say after the gathering of evidence by the lower court, the Court of Cassation required the appellant to state in his appeal on points of law the facts of the case as admitted by the court below. In the Government ’ s view, such a statement was indispensable so that the Court of Cassation could subsequently exercise its right to review the construction of legal rules by the lower court. The Government considered that it was reasonable to expect the appellant on points of law to present the facts of the case as established by the Court of Appeal after the gathering of evidence. Otherwise it would be for the Court of Cassation itself to ascertain the facts that had led to an erroneous interpretation of domestic law by the Court of Appeal.
2. The applicants
21. The applicants replied that the rule applied by the Court of Cassation derived purely from case-law and not from any provision of domestic or international law. They added that their ground of appeal on points of law had been a legal ground that rendered superfluous any restatement of the facts of the case. They further alleged that all the requisite documents, namely those concerning their action and appeal before the domestic courts, together with copies of the corresponding judgments, had been included in the case file at the disposal of the Court of Cassation.
B. The Court ’ s assessment
22. The Court points out that, in its decision on the admissibility of the application, it joined to the merits the objection concerning the exhaustion of domestic remedies that had been raised by the Government in respect of the present complaint.
23. The Court considers that its task, in the present case, is to ascertain whether the manner in which the Court of Cassation dismissed the single ground of appeal on points of law submitted by the applicants deprived them de facto of their right to have their appeal examined on the merits. For that purpose the Court will look at the proportionality of the limitation imposed in relation to the requirements of legal certainty and the proper administration of justice.
24. The Court observes that the Greek Court of Cassation has judicially laid down a condition of admissibility based on the degree of precision of the grounds of appeal on points of law. That rule complies, in general terms, with the requirements of legal certainty and the proper administration of justice. When the appellant before the Court of Cassation alleges that the Court of Appeal made a mistake in its assessment of the facts of the case in relation to the legal rule applied, it would seem reasonable to require the appellant to set out in his appeal the relevant facts that constitute the subject-matter of his submissions. Otherwise the Court of Cassation would not be in a position to exercise its right of review in respect of the judgment appealed against. It would be required to re-establish the relevant facts of the case and to interpret them itself in relation to the legal rule applied by the Court of Appeal. Such a hypothesis cannot be envisaged because it would mean requiring the Court of Cassation itself to formulate the grounds of appeal on points of law – grounds that it will then have to examine. In sum, the principle at issue is consonant with the specific role of the Court of Cassation, whose right of review is limited to the observance of the law (see, to that effect, Brechos v. Greece (dec.), no. 7632/04, 11 April 2006).
25. In the present case, however, the Court does not find that the applicants ’ appeal on points of law imposed on the Court of Cassation the burden of re-establishing the facts of the case. In the Court ’ s view, three factors must be taken into account in this connection. First, the single ground of appeal on points of law related exclusively to the Court of Appeal ’ s construction of the provisions applied in the case. Consequently, the simultaneous submission of the facts of the case, as established by the Court of Appeal, was not indispensable for the exercise by the Court of Cassation of its right of review (see Efstathiou and Others v. Greece, no. 36998/02, § 31, 27 July 2006).
26. Secondly, the crucial facts of the case for the Court of Cassation ’ s examination were not particularly complex. Only one element was of real importance, namely the age of the baby at the time the offending photographs were taken, and that element was clear from the considerations of the Court of Appeal reproduced in the appeal on points of law (see Zouboulidis v. Greece, no. 77574/01, § 29, 14 December 2006 ).
27. Lastly, the impugned decision of the Court of Appeal had been appended to the appeal on points of law. It was thus easy for the Court of Cassation to consult the text of the judgment appealed against and to verify the accuracy of one simple fact already referred to in the appeal on points of law (see Efstathiou and Others, cited above, § 31).
28. In these circumstances, the Court takes the view that the Court of Cassation was apprised of the facts as established by the Court of Appeal. To declare the single ground of appeal inadmissible because the applicants “[had] not indicate[d] in their appeal the factual circumstances on which the Court of Appeal had based its decision dismissing their appeal” amounted to excessive formalism and prevented the applicants from having the merits of their allegations examined by the Court of Cassation (see, to this effect, Běleš and Others v. the Czech Republic, no. 47273/99, § 69, ECHR 2002 ‑ IX, and Zvolský and Zvolská v. the Czech Republic, no. 46129/99, § 55, ECHR 2002 ‑ IX ).
Accordingly, the Court dismisses the Government ’ s preliminary objection that domestic remedies had not been exhausted and finds that there has been a violation of Article 6 § 1 of the Convention.
II. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
29. The applicants further complained that there had been an unlawful interference with their child ’ s right to respect for his private life in view of the dismissal of their action for damages by the lower domestic courts. In particular, they disputed the reasoning given by those courts, namely that the mental maturity of their son, who was only one day old, was not sufficiently developed for him to perceive the alleged infringement of his personality rights. The applicants relied on Article 8 of the Convention, of which the relevant part reads as follows:
“1. Everyone has the right to respect for his private ... life, ...
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. The parties ’ submissions
1. The Government
30. The Government argued at the outset that the applicants had not relied on a violation of Article 8, either expressly or in substance, during the proceedings before the domestic courts. They had not therefore given the national authorities an opportunity to remedy the alleged violation. The Government moreover contested the applicability of Article 8 in the present case, arguing that since the offending photographs had not been published the “private life” of the applicants ’ son was not at issue.
31. On the merits, the Government alleged that the photographer ’ s intention was solely to sell the photographs of the new-born baby to its parents, without releasing them to the general public. In the present case there had thus been no commercial exploitation of the baby ’ s image. The Government concluded that, in these circumstances, there had been no interference with the applicants ’ son ’ s right to respect for his private life. They added in this connection that it was self-evident that the mental maturity of the baby, at the age of only one day, was not sufficiently developed for it to sense any such infringement of its personality rights.
2. The applicants
32. The applicants argued that the approach taken by the domestic courts as regards the protection of their child ’ s personality was dangerous. In particular, they argued that if the perception by an individual of a potential interference with his image and, a fortiori, his personality were to be a prerequisite for his judicial protection, then the dignity and integrity of certain categories of persons could be at risk.
B. The Court ’ s assessment
1. Preliminary objections
33. The Court reiterates its previous finding, in its decision of 6 September 2007 on the admissibility of the application, that the applicants did invoke the right to protection of private life before the domestic courts and that they exhausted domestic remedies in respect of their complaint under Article 8 of the Convention. The Court also found that Article 8 was engaged in the present case. It does not therefore find it necessary to examine the Government ’ s objections a second time.
The objections in question should accordingly be dismissed.
2. Merits
(a) Scope of the case
34. The Court finds that it is necessary first to circumscribe the scope of the present case. It cannot address the general question raised by the applicants as to whether the recognition of a potential interference with the right to the protection of one ’ s image depends on the awareness of such interference by the individual concerned. The Court ’ s task is to ascertain whether the taking of the photographs in question without the parents ’ prior consent, together with the retention of the negatives, was capable of interfering with the baby ’ s right to respect for its private life as guaranteed by Article 8 of the Convention. Consequently, the issue in the present case is whether the domestic courts afforded sufficient protection to the private life of the applicants ’ son.
35. The Court reiterates that, although the object of Article 8 is essentially that of protecting 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 primarily negative undertaking, there may be positive obligations inherent in an effective respect for private or family life. These obligations may involve the adoption of measures designed to secure respect for private life even in the sphere of the relations of individuals between themselves. That also applies to the protection of a person ’ s picture against abuse by others (see Von Hannover v. Germany, no. 59320/00, § 57, ECHR 2004 ‑ VI ).
36. The boundary between the State ’ s positive and negative obligations under this provision does not lend itself to precise definition. The applicable principles are, nonetheless, similar. In both contexts regard must be had to the fair balance that has to be struck between the competing interests of the individual and of the community as a whole; and in both contexts the State enjoys a certain margin of appreciation (ibid.).
37. Moreover, the Court would emphasise that in the present case the applicants ’ son did not knowingly or accidentally lay himself open to the possibility of having his photograph taken in the context of an activity that was likely to be recorded or reported in a public manner. On the contrary, the photographs were taken in a place that was accessible only to the doctors and nurses of the clinic I. and the baby ’ s image, recorded by a deliberate act of the photographer, was the sole subject of the offending photographs.
(b) General principles
38. The Court notes that the Government focussed their arguments on the fact that in the present case the images in question were not published but simply reproduced with a view to being sold to the baby ’ s parents. The Government thus alleged that, as there had been no publication of the offending images, there could not have been any infringement of the baby ’ s personality rights. The Court must therefore ascertain whether, although the offending images were not published, there was nevertheless interference with the applicants ’ son ’ s right to the protection of his private life. For that purpose it is necessary to examine the substance of the right to the protection of one ’ s image, especially as in previous cases the Court has dealt with issues specifically involving the publication of photographs, whether of politicians or public figures (see Schüssel v. Austria (dec.), no. 42409/98, 21 February 2002, and Von Hannover, cited above, § 50, respectively) or even of private persons (see Sciacca v. Italy, no. 50774/99, § 28, ECHR 2005 ‑ I ).
39. In general terms, the Court observes that according to its case-law “private life” is a broad concept not susceptible to exhaustive definition. The notion encompasses the right to identity (see Wisse v. France, no. 71611/01, § 24, 20 December 2005 ) and the right to personal development, whether in terms of personality (see Christine Goodwin v. the United Kingdom [GC], no. 28957/95, § 90, ECHR 2002 ‑ VI ) or of personal autonomy, which is an important principle underlying the interpretation of the Article 8 guarantees (see Evans v. the United Kingdom [GC], no. 6339/05, § 71, ECHR 2007 ‑ ..., and Pretty v. the United Kingdom, no. 2346/02, § 61, ECHR 2002 ‑ III ).
40. A person ’ s image constitutes one of the chief attributes of his or her personality, as it reveals the person ’ s unique characteristics and distinguishes the person from his or her peers. The right to the protection of one ’ s image is thus one of the essential components of personal development and presupposes the right to control the use of that image. Whilst in most cases the right to control such use involves the possibility for an individual to refuse publication of his or her image, it also covers the individual ’ s right to object to the recording, conservation and reproduction of the image by another person. As a person ’ s image is one of the characteristics attached to his or her personality, its effective protection presupposes, in principle and in circumstances such as those of the present case (see paragraph 37 above), obtaining the consent of the person concerned at the time the picture is taken and not simply if and when it is published. Otherwise an essential attribute of personality would be retained in the hands of a third party and the person concerned would have no control over any subsequent use of the image.
(c) Application of these general principles in the present case
41. In the present case the Court first observes that, as regards the conditions in which the offending pictures were taken, the applicants did not at any time give their consent, either to the management of the clinic or to the photographer himself. In this connection it should be noted that the applicants ’ son, not being a public or newsworthy figure, did not fall within a category which in certain circumstances may justify, on public-interest grounds, the recording of a person ’ s image without his knowledge or consent (see Krone Verlag GmbH & Co. KG v. Austria, no. 34315/96, § 37, 26 February 2002 ). On the contrary, the person concerned was a minor and the exercise of the right to protection of his image was overseen by his parents. Accordingly, the applicants ’ prior consent to the taking of their son ’ s picture was indispensable in order to establish the context of its use. The management of the clinic I. did not, however, seek the applicants ’ consent and even allowed the photographer to enter the sterile unit, access to which was restricted to the clinic ’ s doctors and nurses, in order to take the pictures in question.
42. In addition, the Court finds that it is not insignificant that the photographer was able to keep the negatives of the offending photographs, in spite of the express request of the applicants, who exercised parental authority, that the negatives be delivered up to them. Admittedly, the photographs simply showed a face-on portrait of the baby and did not show the applicants ’ son in a state that could be regarded as degrading, or in general as capable of infringing his personality rights. However, the key issue in the present case is not the nature, harmless or otherwise, of the applicants ’ son ’ s representation on the offending photographs, but the fact that the photographer kept them without the applicants ’ consent. The baby ’ s image was thus retained in the hands of the photographer in an identifiable form with the possibility of subsequent use against the wishes of the person concerned and/or his parents (see, mutatis mutandis, P.G. and J.H. v. the United Kingdom, no. 44787/98, § 57, ECHR 2001 ‑ IX ).
43. The Court notes that, during the examination of the case at issue, the domestic courts failed to take into account the fact that the applicants had not given their consent to the taking of their son ’ s photograph or to the retention by the photographer of the corresponding negatives. In view of the foregoing, the Court finds that the Greek courts did not, in the present case, sufficiently guarantee the applicants ’ son ’ s right to the protection of his private life.
There has therefore been a violation of Article 8 of the Convention.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
44. 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
45. The applicants claimed 36,000 euros (EUR) jointly in respect of the non-pecuniary damage they considered they had sustained in the present case.
46. The Government requested the Court to dismiss this claim and moreover submitted that any award should not exceed EUR 5,000.
47. The Court considers that the applicants certainly sustained non-pecuniary damage on account of the interference with their right of access to a court and with their child ’ s private life, and that the finding of violations of the Convention does not constitute sufficient just satisfaction for such damage. Deciding on an equitable basis, the Court awards the applicants EUR 8,000 jointly under this head, plus any tax that may be chargeable on that amount.
B. Costs and expenses
29. As the applicants did not submit any claim for costs and expenses, the Court considers that no award should be made to them under this head.
C. Default interest
30. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.