CEDH · CASELAW;CLIN;ENG — 15 janvier 2009

.s3ABFC313 { font-size:10pt } .sEB86A30B { margin-top:0pt; margin-bottom:14pt; page-break-after:avoid } .sBB9EE52A { font-family:Arial } .sA241FE93 { margin-top:0pt; margin-bottom:18pt; text-align:justify; page-break-after:avoid; border-bottom:0.75pt solid #000000; padding-bottom:1pt } .s2EF62ED2 { margin-top:0pt; margin-bottom:0pt; font-size:12pt } .s4DDA3AA3 { font-family:Arial; font-weight:bold; font-style:italic } .s29100277 { font-family:Arial; font-weight:bold } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .s8F2B0B1B { margin-top:12pt; margin-bottom:12pt; page-break-after:avoid; font-size:12pt } .s9FF10068 { margin-top:0pt; margin-bottom:12pt } .sA36B60A1 { font-family:Arial; font-style:italic } .s5F48796F { margin-top:12pt; margin-bottom:0pt; text-align:justify } .s5CB9E8AB { margin-top:12pt; margin-bottom:0pt; text-align:justify; border-bottom:1pt solid #000000; padding-bottom:1pt } .sDF790F1E { margin-top:12pt; margin-bottom:0pt; text-align:center } .s7ED160F0 { text-decoration:none } .s3DC36BA9 { font-family:Arial; text-decoration:underline; color:#0069d6 } Information Note on the Court’s case-law No. 115 January 2009 Reklos and Davourlis v. Greece - 1234/05 Judgment 15.1.2009 [Section I] Article 8 Article 8-1 Respect for private life Photographing of a newborn baby without prior agreement of parents and retention of the negatives: violation   Facts : The applicants were the parents of a new-born baby who was placed in a sterile unit to which only medical staff at the clinic had access. The following day the mother was presented with photographs of the baby taken face on. The applicants protested about the intrusion of a professional photographer working in the clinic into an environment to which only medical staff should have had access, and the possible annoyance caused to the infant by taking photographs from the front and, above all, without their prior consent. In view of 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 in the court of first instance. The action was dismissed as unfounded. That decision was upheld by a court of appeal and the Court of Cassation dismissed an appeal on points of law on the ground that it was too vague. Law : Article 6 § 1 – The facts of the case as established by the court of appeal had been brought to the attention of the Court of Cassation. To declare the applicants’ only ground of appeal inadmissible on the grounds that they had not set out in their appeal on points of law the facts on which the court of appeal had relied when dismissing their appeal from the court of first instance amounted to excessive formalism and had prevented the applicants from having the merits of their appeal examined by the Court of Cassation. Consequently, the Court dismissed the Government’s preliminary objection of a failure to exhaust domestic remedies. Conclusion : violation (unanimously). Article 8 – The applicants had not at any stage given their consent for the photograph to be taken to either the management of the clinic or to the photographer. The person photographed was a minor and his right to control his image was exercised by his parents. Consequently, the applicants’ prior consent to their son’s picture being taken was essential to enable the circumstances in which it would be used to be determined. However, instead of seeking the applicants’ consent, the authorities at the clinic had actually allowed the photographer to enter a sterile environment, to which only doctors and nurses from the clinic had access, to take the photographs. The photographer had also been permitted to keep the negatives despite an express request by the applicants, who had parental authority, for them to be handed over. Although the photographs showed the baby only from the front and not in a state which could be considered demeaning or was otherwise liable to damage his personality, the overriding consideration was not whether the photographs were harmless but the fact that the photographer had kept them without obtaining the applicants’ consent. The baby’s image had been captured by the photographer in a form in which it could be identified and had subsequently been used in a manner that was contrary to its and/or its parents’ wishes. The domestic courts had not taken into account the lack of parental consent for the photographs to be taken or for them to be kept by the photographer and had, thus failed sufficiently to guarantee the child’s right to the protection of its private life. Conclusion : violation (unanimously).   © Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court. Click here for the Case-Law Information Notes