THIRD SECTION
CASE OF MARGARI v. GREECE
(Application no. 36705/16)
 
JUDGMENT
 
Art 8 • Private life • Photographs and personal data of a defendant in criminal proceedings published in the press on public prosecutor’s order for six months after charges brought, without her prior knowledge and consent • Objective usefulness of publishing the material served a sufficiently pressing social need in case-circumstances • No distinction made between charges against applicant and co-defendants in published police announcement executing prosecutor’s order • Processing of personal data relating to criminal charges called for enhanced protection due to its particular sensitivity • Need for such sensitive data to accurately reflect the situation and the charges against an accused person, with regard to the observance of the presumption of innocence • Existing domestic safeguards of prior notification and right of appeal against prosecutor’s decision not applicable in relation to charges at issue • Interference not sufficiently justified and disproportionate
 
STRASBOURG
20 June 2023
FINAL
 
06/11/2023
 
This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Margari v. Greece,
The European Court of Human Rights (Third Section), sitting as a Chamber composed of:
 Pere Pastor Vilanova, President,
 Georgios A. Serghides,
 Darian Pavli,
 Peeter Roosma,
 Ioannis Ktistakis,
 Andreas Zünd,
 Oddný Mjöll Arnardóttir, judges,
and Milan Blaško, Section Registrar,
Having regard to:
the application (no. 36705/16) against the Hellenic Republic lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Greek national, Ms Eleni Margari (“the applicant”), on 17 June 2016;
the decision to give notice to the Greek Government (“the Government”) of the complaints under Articles 8 and 13 of the Convention concerning the publication of the photograph of the applicant together with the charges pending against her and the lack of a remedy in that regard, and to declare the remainder of the application inadmissible;
the parties’ observations;
Having deliberated in private on 16 May 2023,
Delivers the following judgment, which was adopted on that date:
INTRODUCTION
1. The application concerns the publication of the applicant’s photograph and personal data in the press for a period of six months after she had been charged with certain offences. The applicant complained that the publication had taken place following an order of the public prosecutor to that effect, without her having prior knowledge of it, without her being able to contest the decision and without her being distinguished from her co-accused as regards the offences she had been charged with, which gave the public the impression that she had been charged with more serious (forms of) offences than was actually the case. THE FACTS
2. The applicant was born in 1978 and lives in Athens. She was represented by Mr K. Farmakidis-Markou, a lawyer practising in Athens. 3. The Government were represented by their Agent’s delegate, Ms O. Patsopoulou, Senior Adviser at the State Legal Council. 4. The facts of the case may be summarised as follows. 5. On 16 November 2015 the applicant was arrested in the context of a police investigation, along with other six persons. The public prosecutor of the Athens Court of First Instance charged the applicant with the offences of aiding and abetting fraud, forgery and use of forged documents, and also with participation in a criminal organisation contrary to Article 187 § 5 of the Criminal Code. The applicant was released from detention pending trial after making her defence statement on 19 November 2015, on condition that she did not leave the country. 6. The applicant was charged with joining a criminal organisation formed by some of her co-defendants in order to commit fraud in relation to property transactions. They had allegedly approached the owners and prospective buyers pretending to be estate agents and, using forged documents, had transferred or promised to transfer ownership of the properties in question in order to receive a deposit and keep it for themselves, and in that way had obtained more than 700,000 euros. 7. On 25 November 2015 the Department of Public Security of the Eastern Attica Police asked the public prosecutor to publish the personal data and photographs of the accused pursuant to Article 2 (b) and Article 3 § 2 of Law no. 2472/97 in order to protect society from similar actions, and to investigate whether there were other cases in which the accused had participated. 8. Following this, the public prosecutor of the Athens Court of First Instance issued order no. F34/2015, which authorised the publication of the personal data and photographs of seven of the accused persons, including the applicant, by any media outlets and relevant websites for a period of six months, from 2 December 2015 until 2 June 2016. The order was approved by the public prosecutor of the Athens Court of Appeal, who considered that all the legal conditions for such an order had been met. 9. According to the applicant, the announcement was published on 16 December 2015 on the website of the Hellenic Police. It referred to “members of a criminal organisation that committed fraud at the expense of property owners in Psychiko and Voula” (areas of Attica). The applicant was the third person mentioned in the announcement, which mentioned that the people described had been charged “with offences of fraud committed jointly, forgery and use of forged documents, issuing false certificates, falsification of documents, knowingly filing a false criminal complaint and breach of the law in relation to money laundering, as applicable”. 10. On 26 December 2015 the applicant was informed by some friends of the publication of her personal data that had been reproduced in various media outlets and websites. She then requested a copy of the public prosecutor’s order, which she received on 11 January 2016. In the order she was mentioned fourth and the offences with which each accused was charged were distinguished from the charges against the other persons featuring in the announcement. 11. At the end of the main investigation, the accused persons were committed for trial in the three-member Athens Criminal Court of Appeal. By judgment no. 3126/2017 delivered on 22 June 2017, the applicant was convicted and sentenced to eleven years and six months’ imprisonment without suspensive effect. The applicant and her co-accused appealed against that decision before the five-member Athens Criminal Court of Appeal. The appeals were heard on 16 September 2022 and on various subsequent dates. According to the information provided by the Government, the applicant did not appear before the appellate court, nor was she represented, which will result in her appeal being rejected as undefended. It follows from the file that the applicant is considered a fugitive. RELEVANT LEGAL FRAMEWORK AND PRACTICE
EUROPEAN LAW
12. The relevant parts of Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data, as in force at the material time, which was later repealed by Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data (General Data Protection Regulation), read as follows:
“(34) Whereas Member States must also be authorized, when justified by grounds of important public interest, to derogate from the prohibition on processing sensitive categories of data where important reasons of public interest so justify in areas such as public health and social protection - especially in order to ensure the quality and cost-effectiveness of the procedures used for settling claims for benefits and services in the health insurance system - scientific research and government statistics; whereas it is incumbent on them, however, to provide specific and suitable safeguards so as to protect the fundamental rights and the privacy of individuals;
... (45) Whereas, in cases where data might lawfully be processed on grounds of public interest, official authority or the legitimate interests of a natural or legal person, any data subject should nevertheless be entitled, on legitimate and compelling grounds relating to his particular situation, to object to the processing of any data relating to himself; whereas Member States may nevertheless lay down national provisions to the contrary;
...”
Article 8
The processing of special categories of data
“... 5. Processing of data relating to offences, criminal convictions or security measures may be carried out only under the control of official authority, or if suitable specific safeguards are provided under national law, subject to derogations which may be granted by the Member State under national provisions providing suitable specific safeguards. However, a complete register of criminal convictions may be kept only under the control of official authority. Member States may provide that data relating to administrative sanctions or judgements in civil cases shall also be processed under the control of official authority.
...”
Article 13
Exemptions and restrictions
“1. Member States may adopt legislative measures to restrict the scope of the obligations and rights provided for in Articles 6 (1), 10, 11 (1), 12 and 21 when such a restriction constitutes a necessary measure to safeguard:
... (d) the prevention, investigation, detection and prosecution of criminal offences, or of breaches of ethics for regulated professions;
...”
DOMESTIC LAWThe Constitution

13. The relevant Articles of the Greek Constitution read as follows:
Article 9A
“All persons have the right to be protected from the collection, processing and use, especially by electronic means, of their personal data, as specified by law. The protection of personal data shall be ensured by an independent authority, which shall be constituted and shall operate as specified by law.”
Article 25
“1. The rights of the human being as an individual and as a member of society and the principle of the welfare state based on the rule of law shall be guaranteed by the State. All agents of the State shall be obliged to ensure the unhindered and effective exercise thereof. These rights shall also apply to the relations between individuals where appropriate. Restrictions of any kind which, in accordance with the Constitution, may be imposed upon these rights shall be provided for either directly by the Constitution or by statute should there be a corresponding reservation, and shall respect the principle of proportionality.
...”
The Criminal Code
14. The relevant Articles of the Criminal Code read as follows:
Article 187
Criminal organisation
“1. A sentence of imprisonment of up to ten years may be imposed on any person who sets up or becomes a member of a structured and permanently active group made up of three or more persons (an organisation) for the purpose of committing the serious crimes provided for by Articles 207 (forgery), 208 (circulation of counterfeit currency), 216 (falsification of documents), 218 (falsification and abuse of official stamps), 242 (false testimony or distortion), ... 374 (aggravated theft), 375 (embezzlement), 380 (robbery), 385 (extortion), 386 (fraud), 386A (computer fraud), 404 (usury) ...
... 5. Save for the cases provided for in paragraph 1 [of this Article], a person who unites with another to commit a serious crime (as a criminal organisation) shall be liable to a term of imprisonment of at least six months. A person who unites with another, as provided for by the previous sentence, in order to commit a misdemeanour punishable by at least one year’s imprisonment with the aim of receiving a financial or other material benefit or causing harm to life, bodily integrity or sexual freedom shall be liable to a term of at least three months’ imprisonment.”
The Civil Code and its Introductory Law
15. The relevant Articles of the Civil Code provide as follows:
Article 57
“Any person whose personal rights are unlawfully infringed shall be entitled to bring proceedings to ensure the cessation of the infringement and restrain any future infringement ... In addition, the right to claim damages on the basis of the provisions concerning unlawful acts shall not be excluded.”
Article 59
“In cases covered by the preceding two Articles, the court, when giving judgment at the request of the person whose rights have been infringed and taking account of the nature of the infringement, may also order the person at fault to afford redress for any non-pecuniary damage caused. This may entail the payment of a sum of money, a public announcement and/or any other measure that is appropriate in the circumstances.”
16. Article 105 of the Introductory Law to the Civil Code provides as follows:
“The State shall be duty bound to make good any damage caused by unlawful acts or omissions attributable to its bodies in the exercise of public authority, except where the unlawful act or omission was in breach of an existing provision of law but was intended to serve the public interest. The person responsible and the State shall be jointly and severally liable, without prejudice to the special provisions on ministerial responsibility.”
Law no. 2472/1997 on the protection of individuals with regard to the processing of personal data
17. At the material time, the processing of personal data was governed by Law no. 2472/1997 transposing Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data into Greek law. The relevant provisions of the Law read as follows:
Article 2
Definitions
“... (b)  ’Sensitive data’ shall mean any data concerning racial or ethnic origin, political opinions, religious or philosophical beliefs, trade-union membership, health, social welfare and sexual life, criminal charges or convictions, as well as participation in associations dealing with the above-mentioned areas. In particular, with regard to criminal charges or convictions, the prosecutor’s office may authorise the publication [of personal data] in relation to the offences referred to in Article 3 § 2 (b) by an order of the prosecutor of the Court of First Instance, or the prosecutor of the Court of Appeal if the case is pending before the appellate court. The order shall include detailed and specific reasons, and shall define the mode of publication and the period for which it shall last. The publication shall serve the aims of protecting society, minors or vulnerable or disadvantaged sectors of the population, and facilitating the State’s task of punishing the above-mentioned offences. The defendant or convicted person shall be allowed to lodge an appeal against the prosecutor’s order within two days of its being notified to him or her, with the Head of the Prosecutor’s Office of the Court of First Instance, or of the Court of Appeal if the case is pending before the appellate court, who shall decide within two days. Until the appropriate prosecutor has taken his or her decision, the execution of the order and the publication of the data shall be forbidden. As an exception, in relation to the serious crimes defined in Article 187 and Article 187 A and the 19th Chapter of the Criminal Code, namely ‘offences against sexual freedom and offences of financial exploitation of sexual life’, the prosecutor’s order shall be executed immediately and shall be approved within twenty-four hours by the Head of the Prosecutor’s Office of the Court of Appeal if it has been issued by the prosecutor of the Court of First Instance. Otherwise, it shall automatically cease to be valid on the expiry of a period of twenty-four hours. The provisions of the two previous sentences shall apply by analogy to any offences where the perpetrator is considered by the appropriate prosecutor to present a particular danger to public order and security and is wanted for arrest or when the perpetrator’s residential address is unknown.”
Article 3
“... 2. The provisions of this law shall not apply to the processing of personal data:
... (b) by the judicial and prosecuting authorities and services acting under their immediate supervision in the administration of justice or for their operational needs in investigating criminal acts that are punished as serious crimes or misdemeanours committed with intent, and especially crimes against life, against sexual freedom, relating to financial exploitation of sexual freedom, against personal liberty, against property, against financial rights, breaches of the law relating to drugs, threats to public security, or crimes against minors ... The current substantive and procedural criminal provisions shall be applicable to the above.”
Hellenic Data Protection Authority
18. The Hellenic Data Protection Authority issued decision no. 128/2012 on the publication of the personal data of certain persons charged with criminal offences in the context of other domestic cases. It stated, among other things, the following:
“... 3. More specifically, it goes without saying that the prosecuting authorities, in exercising their above-mentioned powers, as guarantors of the observance of the Constitution and the law, will apply Article 9A of the Constitution..., as well as the substantive provisions of Law no. 2472/1997 and in particular the proportionality principle. Consequently, acting in accordance with that principle, they will consider whether, in order to achieve the purposes of the above-mentioned provision [Article 2 (b), second sentence] (recourse to which should be had sparingly), it is necessary to publish personal data relating to criminal charges or convictions, and will take into account the fact that publication under the above-mentioned provision is tolerated, in accordance with the Constitution and Law no. 2472/1997, only if the personal data published are absolutely necessary and appropriate to achieve the aim pursued as mentioned in the prosecutor’s order, whether for the protection of society or minors or to investigate the full extent of the particular offence in respect of which the charges have been brought and the preliminary or main investigation is being conducted, in the context of which the publication was ordered. Moreover, the person issuing the order will consider whether that aim may be achieved solely by reference to the prosecution and to data identifying the alleged perpetrator that are absolutely necessary and closely linked to the case and will avoid any excessive publication of personal data, especially sensitive data, in view of the burdensome consequences of the publication of such data, which in most cases are irreversible ...”
THE LAW
PRELIMINARY ISSUE – CONTINUED EXAMINATION OF THE APPLICATION UNDER ARTICLE 37
19. In reply to a written question to the applicant as to whether there was still contact between her and her representative, the representative indicated that he had had sporadic communication with the applicant until 2022 but that when he had tried to contact the applicant after receiving letters from the Court’s Registry, he had been unsuccessful. He stated that he could not reasonably conclude that his power of attorney had been revoked or that the applicant wished to withdraw her application to the Court. He added that he was aware that the applicant suffered from various mental and physical health issues, but that these were not so serious as to suggest that she no longer had the capacity to pursue her legal rights and interests. 20. In view of these circumstances, the Court considers it necessary first to examine whether it is justified to continue the examination of the application in the light of the criteria set forth in Article 37 of the Convention, which reads as follows:
“1. The Court may at any stage of the proceedings decide to strike an application out of its list of cases where the circumstances lead to the conclusion that
(a)  the applicant does not intend to pursue his application; or
(b)  the matter has been resolved; or
(c)  for any other reason established by the Court, it is no longer justified to continue the examination of the application. However, the Court shall continue the examination of the application if respect for human rights as defined in the Convention and the Protocols thereto so requires.”
21. The relevant principles and the Court’s case-law on the matter have been summarised in N.D. and N.T. v. Spain ([GC] nos. 8675/15 and 8697/15, §§ 72-77, 13 February 2020). 22. The Court notes that in the present case, the representative’s letter casts doubt on his continued communication with the applicant as of 2022, as well as on the applicant’s wish to pursue the application. That being said, the Court observes that, even if the circumstances of a case lead to the conclusion that an applicant no longer wishes to pursue the application, it may continue its examination “if respect for human rights as defined in the Convention and the Protocols thereto so requires” (Article 37 § 1 in fine). Circumstances regarding respect for human rights as defined in the Convention and the Protocols thereto and which require the continued examination of the application exist when such an examination would contribute to elucidating, safeguarding and developing the standards of protection under the Convention (see, for example, Konstantin Markin v. Russia [GC], no. 30078/06, § 90, ECHR 2012 (extracts)). 23. The Court considers that the subject matter of the present application – the publication of personal data by the prosecuting authorities in the context of pending criminal proceedings – involves an important question of general interest not only for Greece but also for other States Parties to the Convention. There are therefore special circumstances regarding respect for human rights as defined in the Convention and the Protocols thereto which require the further examination of the application on its merits. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
24. The applicant complained that the publication of her photograph and personal data in the press for a period of six months following her being charged with certain offences had violated her right to private life as provided for in Article 8 of the Convention, which 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.”
AdmissibilityThe parties’ arguments

25. The Government argued that the applicant had not exhausted the available domestic remedies. In particular, the applicant had lodged her application with the Court on 17 June 2016, that is to say, after the expiry of the validity of the prosecutor’s order on the basis of which her photograph and personal data had been published. That meant that by lodging her application with the Court, the applicant was seeking an ex post facto finding of a violation of her right to privacy and potentially an award of compensation by way of just satisfaction. However, she could have achieved that result by lodging an action under Articles 57 and 59 of the Civil Code and Article 105 of the Introductory Law to the Civil Code in conjunction with Article 7 of the Charter of Fundamental Rights of the European Union and Article 8 of the Convention. Relying on a series of judgments of the Supreme Administrative Court and administrative courts, the Government submitted that an application for compensation for damage caused by unlawful acts or omissions by the State could result in an award of compensation for pecuniary and non-pecuniary damage and it was therefore an appropriate and effective legal remedy that applicants should use, whether they attributed the unlawful action to the prosecutor (as part of the judiciary), the police or the legislature. The Supreme Administrative Court by its judgment no. 799/2021 had also ruled that the State’s liability for compensation under Article 105 of the Introductory Law to the Civil Code was engaged even when the violation was of an international treaty rather than domestic law. The Government further noted that the Court had acknowledged the availability and effectiveness of that remedy for alleged violations of Article 8 and Article 6 § 2 of the Convention in Anastassakos v. Greece ((dec.), no. 41380/06, 3 May 2011). 26. The applicant replied that at the time she had lodged her application with the Court there had been only one judgment of the Supreme Administrative Court (no. 1501/2014) in which it had been held that an action for damages could be brought even when the damage in question had been caused by a manifest error of judgment on the part of a judicial body. It was only recently that the Supreme Administrative Court had stated unambiguously that the liability of the State was engaged by acts and omissions of judicial bodies (judgment no. 799/2021). Having regard to the fact that, at the time of lodging the application, there was clear Supreme Administrative Court case-law indicating that any action against the decision of the public prosecutor would have been ineffective, the applicant argued that she was not required to have used that legal remedy.

Outcome for Article 41: violation