DISSENTING OPINION OF JUDGE SERGHIDES

1. The applicant, who is a fugitive from the Greek criminal justice system and authorities (see paragraphs 11 and 66 of the judgment), complained that the publication by the Greek police of her photograph and personal data in the press for a period of six months after she had been charged with certain offences had violated her right to respect for her private life, as guaranteed in Article 8 of the Convention. She also complained that she had not had at her disposal an effective remedy for her complaints under Article 8, in violation of Article 13. Lastly, she asked the Court to award her just satisfaction for non-pecuniary damage.

2. Article 35 § 3 (a) of the Convention, dealing with admissibility criteria, provides that “[t]he Court shall declare inadmissible any individual application ... if it considers that ... the application is ... an abuse of the right of individual application ” (emphasis added). Moreover, paragraph 4 of the same Article provides the following: “The Court shall reject any application which it considers inadmissible under this Article . It may do so at any stage of the proceedings” (emphasis added).

3. As I have argued elsewhere (see my partly dissenting opinion, §§ 4-5, in Saure v. Germany, no. 8819/16, 8 November 2022), an abuse of the right of individual application must be considered parasitic in relation to that right and one of its greatest “enemies” as well as one of the worst adversaries of the effective protection of human rights more generally. This is so, because the concept of “abuse” must be understood as a harmful exercise of the right of individual application, for a purpose other than that for which it is intended, namely, the effective protection of human rights. The right of individual application, which is institutionalised and guaranteed by Article 34 of the Convention, is one of the most significant features of the Convention. The jurisdiction or power of the Court to dismiss as inadmissible those applications which constitute an abuse of the right of individual application, at any stage of the proceedings, even of its own motion, is based not only on Article 35 §§ 3 (a) and 4 of the Convention, quoted above (see paragraph 2), but also on Articles 19 and 32 of the Convention, as well as on its inherent jurisdiction, since this issue is related to the jurisdiction, power and function of the Court.

4. On 22 June 2017 the applicant was convicted and sentenced by the three-member Athens Criminal Court of Appeal to eleven years and six months’ imprisonment without suspensive effect, but she, ever since, has remained a fugitive (see paragraphs 11 and 66 of the judgment), without any explanation on her part as to why she is not surrendering herself to the Greek authorities so as to serve her sentence. Her lawyer, in his recent update to the Court (dated 10 March 2023), states that until the year 2022 he had sporadic correspondence with her, but that since then, despite his efforts, he has not been able to re-establish contact with the applicant. As stated in paragraph 11 of the judgment, the applicant and her co-accused appealed against the above-mentioned conviction to the five-member Athens Criminal Court of Appeal. However, according to the information provided by the Government (dated 9 February 2023), the applicant never appeared before that appellate court, nor was she represented, with the result that her appeal would be rejected as undefended and it follows from the file that the applicant is considered to be a fugitive (see paragraph 11 of the judgment). This information was sent by the Court to the applicant’s lawyer for comment and in his letter of 10 March 2023 to the Court he points out that he is not handling any case for the applicant other than her present application before the Court. Regrettably, there is no information in the file as to the efforts that the Greek police have made to trace and arrest the applicant and to take her into custody or why they have failed to do so. The fact that the applicant appealed against her conviction and sentence is evidence that she was informed about the relevant judgment, but she has not surrendered herself to the Greek authorities to serve her prison sentence.

5. Consequently, the applicant has shown complete disrespect for the rule of law of her own country, namely Greece, against which this application was lodged. The fact of maintaining her application before the Court – as this application relates to the facts of the same case for which she was ultimately convicted and sentenced – is unquestionably, in my humble view, an abuse, on the part of the applicant, of the right of individual application, and her application must therefore be rejected as inadmissible under Article 35 § 3 (a) and (c) of the Convention. I would add a word of clarification: I use the phrase “maintaining her application” here, instead of the phrase “lodging her application”, because when the applicant lodged her application before the Court, namely on 16 June 2016, it was prior to her conviction and sentence, which took place on 22 June 2017, and therefore she was not at that time a fugitive. Thus her application came to constitute an abuse of individual application from 22 June 2017, when the applicant was convicted and sentenced, since which time she has not surrendered herself to serve her sentence.

6. This is the first time, to the best of my knowledge, that a case has come before the Court with similar facts to those of the present one (other than in extradition cases), where an applicant is a fugitive from the criminal justice system and authorities and yet the application, constituting an abuse of individual application, seeks Convention protection from the Court. Such an application should not be allowed to make a mockery of the procedure before the Court and undermine its role and credibility as an international human rights institution.

7. The applicant’s conduct is manifestly contrary to the purpose of the right of individual application as provided for in the Convention and impedes the proper function of the Court, which expects applicants to come before it with clean hands and with the higher standard of good faith ( uberrima fides ) and not to ask it to afford them Convention protection while they themselves are fugitives from justice and are in continuous violation of the rule of law. In this connection, it should not be overlooked: firstly, that the role of the Convention mechanism is subsidiary to that of the national authorities, and the efficiency and effectiveness of the Convention system is based on this premise; secondly, that one of the fundamental principles which lies at the heart of the Convention and is enshrined in each of its provisions safeguarding human rights and is also mentioned in its Preamble, as well as in Article 3 and the Preamble to the Statute of the Council of Europe, is the principle of the rule of law; and thirdly, that the Convention is a European and international human rights treaty and, as such, is part of the European and international rule of law. In my view, the Court, which applies the Convention and the principle of the rule of law and ensures by virtue of Article 19 of the Convention the observance of the engagements undertaken by the High Contracting Parties in the Convention, including, of course, the observance that national courts meet the requirements of effective judicial protection, cannot be considered to fulfil its role and mission if it allows an applicant who does not respect the rule of law, by remaining a fugitive, to come before it and endeavour to vindicate his or her rights, by seeking protection from the Court. The most essential requirement of the rule of law is that everyone, without discrimination, must respect and abide by the law and the decisions of the courts.

8. I regret that, though the judgment takes into account the fact that the applicant is a fugitive when dealing with her claim in respect of non-pecuniary damage under Article 41 of the Convention (see paragraph 66 of the judgment), it does not do the same when dealing with her complaint under Article 8 of the Convention and in ultimately finding that there has been violation of this Article. With all due respect, the approach followed by the judgment is not a consistent and coherent one. The character of the present application as an abuse of individual application affects its totality and therefore it pervades all the applicant’s complaints and not only some of them. The rejection of the whole of the application as inadmissible, as this opinion proposes, should have been, in the circumstances of the case, the most appropriate manner of dealing with the application.

9. In view of the above, I would reject the application as inadmissible and this is the reason why I have voted against all five of the judgment’s operative provisions. By way of clarification, I voted against points 4 and 5 not because I took a contrary view on those precise issues but because I considered the provisions to be without object as a consequence of my finding of inadmissibility.

JOINT DISSENTING OPINION OF JUDGES ROOSMA AND ZÃœND

1. To our regret we are unable to follow the majority in this case. Our disagreement primarily lies in the question of exhaustion of domestic remedies, which is intrinsically related to the existence or otherwise of adequate procedural guarantees available to the applicant for asserting her rights under Article 8 – an issue pertaining to the merits of the case.

2. The decision to publish the applicant’s photograph and personal data was taken by a public prosecutor at the request of the police, who had found that this was necessary in order to protect society from similar actions, and to investigate whether there were other cases in which the accused had participated. The prosecutor’s order was approved by a higher prosecutor (see paragraphs 7 and 8 of the judgment). The applicant was not informed about those decisions and upon subsequent investigation it became evident that the announcement published on the website of the Hellenic Police did not correspond verbatim to the public prosecutor’s order: the published announcement was less specific in respect of the particular charges brought against each of the accused and, according to the applicant, had given the public the impression that she had been charged with more serious forms of offences than had actually been the case.

3. Unlike the majority, we are not convinced that the applicant should have been notified of the intended publication prior to the dissemination of her photograph and the details of the pending criminal charges (see paragraph 54 of the judgment). We would point out that the criminal case concerned the defrauding of owners and prospective buyers of real estate by the defendants, who had pretended to be estate agents. It was an evident matter of urgency to warn the public about persons who had been charged with such offences and to urge possible further victims to come forward. The publication took place when the applicant had been released pending trial.

4. As concerns ex post facto remedies – which would have been sufficient in our view – the parties differed as to their availability. The Government referred to Articles 57 and 59 of the Civil Code and Article 105 of the Introductory Law to the Civil Code, under which, in their submission, it would have been possible to establish a violation of the right to respect for private life and claim compensation. In that connection, they relied on a series of judgments of the Supreme Administrative Court and administrative courts relating to compensation for damage caused by unlawful acts or omissions by the State. They also referred to a ruling by the Supreme Administrative Court (judgment no. 799/2021), according to which the State’s liability for compensation was engaged even when the violation was of an international treaty rather than domestic law, and noted that the Court had acknowledged the availability and effectiveness of that remedy for alleged violations of Article 8 and Article 6 § 2 in Anastassakos v. Greece ((dec.), no. 41380/06, 3 May 2011 – see paragraph 25 of the judgment). According to the applicant, there had been only one judgment of the Supreme Administrative Court (no. 1501/2014) at the material time 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. Furthermore, in the applicant’s submission it had been 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). She insisted that at the time of lodging the application, there had been clear Supreme Administrative Court case-law indicating that any action against the decision of the public prosecutor would have been ineffective, and therefore she had not been required to have used that legal remedy (see paragraph 26 of the judgment).

5. In our view, the above arguments made by the parties do not allow us to make a firm conclusion as to the effectiveness or otherwise of a remedy against a decision of the prosecutor or the allegedly unlawful execution of that decision by the police. The majority considered that at the material time it had “not been unambiguously acknowledged in the domestic case-law” that a person could be compensated for an alleged violation in a case like the present one (see paragraph 32 of the judgment). This may well be so, but in our view such a standard for assessing whether the domestic remedies have been exhausted is far too high and neglects the principle of subsidiarity. The applicant acknowledged that after she had lodged her application with the Court, the Supreme Administrative Court had stated unambiguously that the liability of the State was engaged by acts and omissions of judicial bodies (see paragraph 26 of the judgment) – something that, according to the Government, had already happened at an earlier stage. Leaving aside the question whether the domestic case-law allowed for a distinction to be made between the orders of prosecutors and the acts carried out by the police to execute such orders, we note that even in respect of complaints against prosecutors, this consolidation of domestic case-law would have never come into being if all potential victims in cases like the present one had forgone any attempt to apply to domestic courts and turned directly to the European Court of Human Rights. The acceptance of such complaints not only contributes to the excessive caseload of the Court but also has adverse effects on the development of domestic case-law. In any event, the Court has held that it is incumbent on the Government pleading non-exhaustion to satisfy it that the remedy was an effective one available in theory and in practice at the relevant time, that is to say, that it was accessible, was capable of providing redress in respect of the applicant’s complaints and offered reasonable prospects of success ( see Molla Sali v. Greece [GC], no. 20452/14, § 89, 19 December 2018). In the present case the Government referred to specific provisions of domestic law, as well as domestic judgments confirming the availability of the remedy indicated by them. Furthermore, we see no reason why State liability should depend on whether the authorities are in breach of domestic or international law. Mere doubts as to the prospects of success of a particular remedy which is not obviously futile is not a valid reason for failing to exhaust that avenue of redress ( see Vučković and Others v. Serbia (preliminary objection) [GC], nos. 17153/11 and 29 others, §§ 74 and 84, 25 March 2014). Like the Government, we cannot overlook the fact that in Anastassakos (cited above) the Court had already acknowledged the existence of the domestic case-law submitted by the Government according to which civil liability of the State had been – at least partly – accepted for acts and omissions attributed to judicial authorities.

6. As to the merits, we note that the majority’s finding of a violation was based to a significant extent on the procedure used by the domestic authorities for the publication of the information about the applicant, including her alleged lack of opportunity to apply for a review after the decision had been taken. Since we already disagree on that point, we do not need to take a firm position on the remainder of the elements leading to the finding of a violation by the majority. We would limit ourselves to noting that the gravity of the offence was characterised by the applicant’s sentence of eleven years’ imprisonment and that the kind of offence in question could well be seen as weighing heavily in favour of publishing information about the applicant – who was not in pre-trial detention – in order to warn other persons and to seek further possible victims to ensure the proper conduct of the criminal investigation.