Resolution CM/ ResDH (2012) 85 [1]

Execution of the judgment of the European Court of Human Rights

Reklos and Davourlis against Greece

(Application No. 1234/05, judgment of 15 January 2009, final on 15 April 2009)

The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention for the Protection of Human Rights and Fundamental Freedoms, which provides that the Committee supervises the execution of final judgments of the European Court of Human Rights (hereinafter “the Convention” and “the Court”);

Having regard to the judgment transmitted by the Court to the Committee once it had become final;

Recalling that the violations of the Convention found by the Court in this case concern the applicants' right to respect for their private life due to the dismissal by national courts of their action for damages, by which they were complaining about the taking of photographs of their new-born baby without their prior consent (violation of Article 8) and the right of access to the Court of Cassation, due to its excessively formalistic approach as regards admissibility grounds (violation of Article 6 paragraph 1) (see details in Appendix);

Having invited the government of the respondent State to inform the Committee of the mea s ures taken to comply with its obligation under Article 46, paragraph 1, of the Conve n tion to abide by the judgment;

Having examined the information provided by the government in accordance with the Committee’s Rules for the application of Article 46, paragraph 2, of the Convention;

Having satisfied itself that the respondent state paid the a p plicants the just satisfaction provided in the judgment under conditions accepted by them (see details in Appendix),

Recalling that issues relating to violation of the right of access to the Court of Cassation, due to its excessively formalistic approach as regards admissibility grounds are being examined by the Committee of Ministers in the context of the Alvanos group of cases;

Recalling that a finding of violations by the Court requires, over and above the payment of just satisfaction awarded by the Court in its judgments, the adoption by the respondent State, where appropriate:

- of individual measures to put an end to the violations and erase their consequences so as to achieve as far as possible restitutio in integrum ; and

- of general measures preventing similar violations;

DECLARES, having examined the measures taken by the respondent state (see Appendix], that it has exe r cised its functions under Article 46, paragraph 2, of the Convention in this case and

DECIDES to close the examination of this case.

Appendix to Resolution CM/ ResDH (2012) 85

Information about the measures to comply with the judgment in the case of

Reklos and Davourlis against Greece

Introductory case summary

The case concerns the violation of the applicants' right to respect for their private life. Immediately after the birth of their baby in 1997, two photographs of him were taken by a professional photographer located within the relevant clinic. The applicants brought proceedings against the clinic and claimed damages because their son’s photograph had been taken without consent. However, their action was dismissed by domestic courts in 2002. The Court noted that the domestic courts did not sufficiently guarantee the applicants' son’s right to the protection of his private life on the grounds that they failed to take into consideration the facts that the applicants had not given their consent to their son's being photographed and that the photographer had kept the negatives (violation of Article 8).

The case also concerns the disproportionate constraint on the applicants’ right of access to a court. The Court of Cassation, applying a principle enshrined in its case-law concerning the vague character of the grounds of an appeal on points of law, dismissed their appeal in 2004. It was held that they had not specified the factual circumstances on which the court of appeal had based its judgment. The European Court considered that the Court of Cassation had taken an excessively formalistic approach, which had prevented the applicants from having the merits of their allegations examined by that court (violation of Article 6§1)

I. Payment of just satisfaction and individual measures

a) Details of just satisfaction

Name and application No.

Pecuniary damage

Non- pecuniary damage

Costs and expenses

Total

Reklos and Davourlis (1234/05)

8000 EUR

8000 EUR

Pa id on 20/07/2009

The just satisfaction was paid under conditions apparently accepted by the applicants.

b) Individual measures

The authorities noted that it was impossible to trace the photographer and to destroy the negatives. The events took place in 1997 and the photographer was not connected by a permanent contractual relationship with the clinic.

In addition, it is not possible, under Greek law, to have a civil case re-examined or re-opened following the judgment of the European Court . Considering the nature of the violations and the period of time that has elapsed (the applicants’ son should be now 15 years old) the reopening of the proceedings at issue does not appear an appropriate means of achieving the effective implementation of this judgment.

Consequently, no other individual measure was considered necessary by the Committee of Ministers.

II. General measures

a) Violation of Article 8

The European Court ’s judgment, translated into Greek, was sent out by the Ministry of Justice to all competent judicial authorities. A letter from the Ministry of Justice drawing attention to the reasoning and conclusions of the Court was attached . The judgment was also published on the website of the Legal Council of the State ( www.n s k.gr ).

According to the authorities the violation found does not reveal a structural problem, and therefore no other general measures are deemed necessary.

b) Violation of Article 6 paragraph 1

The measures taken or envisaged by the Greek authorities are being examined by the Committee of Ministers in the Alvanos group.

III. Conclusions of the respondent State

The government considers that no individual measure is required, apart from the payment of the just satisfaction and that Greece has thus complied with its obligations under Article 46, paragraph 1, of the Convention.

[1] Adopted by the Committee of Ministers on 6 June 2012 at the 11 44 th Meeting of the Ministers’ Deputies .