Declaration of the applicant as wanted and posting of her photos in police stations. Violation of privacy
JUDGMENT
Negru v. Democracy of Moldova 27.06.2023 (app. no. 7336/11)
SUMMARY
In July 2008 the applicant was arrested after presenting herself at the police station as part of a criminal investigation against her on charges of forging documents. In May 2010 the public prosecutor decided to initiate proceedings against her in her absence – without informing her – and declared the applicant as wanted. According to the applicant, her lawyer noticed on a police station’s publicly posted wanted notice board that she was wanted. Her lawyer tried unsuccessfully to get access to the criminal file. Furthermore, the applicant’s photo had been posted in public places, with the aim of identifying her as a wanted person.
The Court found that both the inclusion of the applicant on the wanted list, the disclosure of this information and the posting of her photograph on a public wanted list constituted an interference with her right to respect for her private life.
Due to the lack of clarity of the procedures for applying the existing rules and the problems in their implementation, the prosecutor, when he declared the applicant wanted, had a discretion which practically amounted to unlimited power. This power was not accompanied by a measure of protection against arbitrary interference as required by a rule of law. Therefore, the prosecutor’s decision was not “in accordance with the law”.
In conclusion, the ECtHR found a violation of privacy (Article 8) and awarded the applicant 4,500 euros for moral damage.
PROVISION
Article 8
PRINCIPAL FACTS
In July 2008 the applicant was arrested after attending the police station in the framework of a criminal investigation against her on charges of document forgery. She was released several hours later but shortly after she left the Republic of Moldova for Italy. In September 2008, after a search, the police concluded in their report that the applicant’s whereabouts were unknown. The same month another criminal investigation was initiated against her on charges of making criminal threats. That investigation was suspended in 2009, for over five months, in the absence of an identified perpetrator. In May 2010 the district prosecutor decided to bring charges against the applicant in her absence – of which she was not informed – and declared the applicant a wanted person. According to the applicant, her lawyer noticed on the public noticeboard of a police station that she had been indicted and was wanted by the police. Her lawyer unsuccessfully sought to have access to the criminal file, the investigation discontinued and the search order cancelled.
THE DECISION OF THE COURT…
Article 8:
(a) Applicability – The applicant’s photograph had been posted on the public premises of at least one police station, with the intention of making it easily accessible to the public and of identifying the applicant as being wanted in connection with a criminal case. Furthermore, under Moldovan law, a decision to include someone on the list of wanted persons involved the processing of personal data in the national integrated automated information system for recording offences, criminal cases and offenders, had an impact on the person’s criminal record, and authorised border guards to arrest the person in question. Therefore, Article 8 was applicable in the present case.
(b) Whether there was an interference – The Court, in absence of any evidence to the contrary, inferred that the impugned measure continued to be in force to the present day. It found that both the inclusion of the applicant on the list of wanted persons and the disclosure of that information, by posting her photograph on the wanted board, had interfered with her right to respect for her private life.
(c) Whether the interference was justified – The prosecutor’s decision to declare the applicant wanted in principle had had a statutory basis, namely Article 288 of the Code of Criminal Procedure. That provision provided for two grounds on which the prosecutor was authorised to take such a decision: either when the whereabouts of that person were unknown or when the person absconded after charges had been brought. The applicant had been declared wanted one day after charges had been brought against her in her absence. While the applicant had not disputed that in 2008 she had left for Italy, the Government had not provided any evidence that the authorities had genuinely tried to summon and to find her from 2008 to 2010 prior to that decision. The police report had been drawn up two years earlier and in the framework of another set of proceedings than the one in which the applicant had been declared wanted. Moreover, after the police had submitted that report, the investigation had been suspended.
The Government had not informed the Court of any measures taken by the criminal investigating authorities to identify whether the applicant had crossed the border during the relevant time or to summon her through her lawyer, who had been retained the entire time. In fact, there was no evidence in the case file to suggest that the authorities had made any reasonable attempts to inform the applicant of the criminal proceedings and of the necessity to appear before them within the framework of those proceedings. Furthermore, the applicant had been unable to obtain any further information about the prosecutor’s decision and to obtain a review of it. The prosecutor had refused to provide any information to her lawyer and the investigating judge had declined to rule on the lawfulness of the measure taken, arguing that the applicant had failed to substantiate a violation of her rights under Article 8 of the Convention.
In sum, in view of the lack of clarity of the procedures for the implementation of the existing rules and the flaws in their application, the prosecutor, when declaring the applicant a wanted person, had enjoyed a discretion practically amounting to unfettered power, not being accompanied by a measure of protection against arbitrary interference as required by the rule of law. Accordingly, the prosecutor’s decision had not been “in accordance with the law”.
Conclusion: violation (unanimously).
Article 41: EUR 4,500 in respect of non-pecuniary damage.
