FIFTH SECTION

DECISION

Application no. 840/21 José María FUSTER-FABRA TORRELLAS against Spain

The European Court of Human Rights (Fifth Section), sitting on 25 January 2024 as a Committee composed of:

Mārtiņš Mits , President , María Elósegui, Kateřina Šimáčková , judges , and Martina Keller, Deputy Section Registrar,

Having regard to:

the application (no. 840/21) against the Kingdom of Spain lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 23 December 2020 by a Spanish national, Mr José María Fuster-Fabra Torrellas (“the applicant”), who was born in 1957 and lives in Barcelona;

the decision to give notice of the complaint concerning Article 8 of the Convention to the Spanish Government (“the Government”), represented by their Agents, Mr A. Brezmes Martínez de Villarreal and Mr L. Vacas Chalfoun, and to declare inadmissible the remainder of the application;

the parties’ observations;

Having deliberated, decides as follows:

SUBJECT MATTER OF THE CASE

1. The case concerns allegedly unlawful surveillance of the applicant by the Catalan autonomous police force ( Mossos d’Esquadra ), which he claimed amounted to a violation of his right to respect for private life under Article 8 of the Convention.

2. On 15 December 2017 the applicant learned from a newspaper article that the Spanish National Police had seized some reports drawn up by the Mossos d’Esquadra in respect of various persons, including himself. According to the press article, those reports had largely concerned persons who were opposed to the movement for Catalan independence. On the same day, the applicant lodged a criminal complaint against the Mossos d’Esquadra officers involved in the surveillance of him for the offences of malfeasance ( prevaricación ), embezzlement ( malversación ) and the discovery and revelation of secrets, and alleged that the surveillance had been politically motivated. Similar complaints were lodged by other individuals and organisations which were mentioned in the press reports and had participated in public events against the independence of Catalonia. The related proceedings were joined and allocated to Barcelona investigating judge no. 22 (“the investigating judge”).

3 . Two Mossos d’Esquadra reports submitted to the Court concerned the applicant. The first report concerned a rally against the Catalan independence movement held on 19 March 2017 that had been organised by Societat Civil Catalana, a civil society organisation. The report contained the names, photographs and any affiliations with political parties or civil society organisations of some of the participants, including the applicant. It also contained a photograph and the names of the persons leading the rally, including the applicant, and general information on the conduct of the rally. The report stated that a rally organised by another association was taking place at the same time, creating some tension. It analysed the turnout of rallies organised by Societat Civil Catalana and other organisations opposing the independence movement, concluding that they were intensifying their presence on social media and their offline activities. The second report concerned the monitoring of the applicant at other times in 2017; it stated that officers had briefly monitored the entrance to his workplace on 2 June 2017 and that he had been followed on 6 and 7 June 2017 by the Mossos d’Esquadra . It contained information on his movements, activities and meetings on those days, and noted the presence of a person close to the applicant’s office who, according to the report’s author, could have been watching him. It contained four photographs, including one of the applicant and one of the person who had apparently been following him.

4. The investigating judge requested documentation from the National Police and the Mossos d’Esquadra and summoned the Chief Commissioner of the Information Service (responsible for intelligence gathering) of the Mossos d’Esquadra as a witness. According to the information provided in response by the Mossos d’Esquadra , and to the witness’s statement, the applicant had been monitored in June 2017 because the Mossos d’Esquadra had received information indicating that he had been followed by an unknown person in connection with a statement he had made to the Parliament of Catalonia on 6 June. Having carried out the surveillance of the applicant, the Mossos d’Esquadra had been satisfied that he had not been in danger and thus had not informed him of the surveillance. Furthermore, the Mossos d’Esquadra had routinely collected information on rallies and assemblies to report on potential risks, given that persons involved in similar rallies in the past had been attacked.

5 . A report submitted by the Chief Commissioner of the Information Service of the Mossos d’Esquadra stated:

“Mr Fuster’s name appeared in several documents related to an investigation by the Barcelona investigating judge no. 21 into two private detectives, both former officers of the National Police in Catalonia, who had been reported to the Mossos d’Esquadra by a private citizen. Th[e] Information Service prepared the following reports, which were sent to the above-mentioned judge ...

The investigating officer was Sergeant ... The investigation was supervised by Deputy Inspector ... and Intendant ( Intendente ) ... of the Information Service.

More specifically, concerning the relation of Mr Fuster-Fabra with the investigation, various documents from open sources linked him with meetings of people being investigated. Nevertheless, since there were no indications that he had committed any criminal action either in the criminal complaint or in open sources, he was not investigated by the Information Service of the Mossos d’Esquadra . In fact, there is no report or any other document in the police databases referred to this person ...

Although there was no investigation into Mr Fuster, on the eve of his statement to the parliamentary commission concerning the Operació Catalunya we received information signalling that persons linked with the above mentioned Operació Catalunya intended to approach him with uncertain intentions but, in any case, in relation to the content of his statement. The analysis of that warning generated two hypotheses: that someone wanted to pressure him and influence the content of his statement ...; or that one of the people who were being investigated would contact him, which could open new lines of inquiry.

Since Mr Fuster was not being investigated in the judicial proceedings the surveillance was limited to the day of his statement at the Parliament [of Catalonia] ‑ no other acts were authorised outside of those few hours – and its only aim was the testing of the hypothesis on the basis of the information received. In fact, the surveillance did produce a positive result since a person who might have been watching [Mr Fuster office’s building] was observed near Mr Fuster’s office. This person was photographed, albeit with his back turned, and the image was added to the report.

In view of this incident (namely the observation of a person who might have been watching Mr. Fuster’s home), it was decided to repeat the surveillance the following day. By midday on 7 June it was decided to terminate the surveillance since neither the person suspected of watching Mr. Fuster nor any other person in a similar attitude had been observed. As previously mentioned, the references to the person supposedly watching Mr Fuster’s building are incorporated in the seized documents. The picture of the person [suspected of keeping watch] is also incorporated, leaving no doubt about the veracity of the motivation of the police action.”

6. On 4 and 21 December 2018, the Chief Commissioner of the Information Service of the Mossos d’Esquadra gave evidence as a witness before the Barcelona investigating judge no. 22. He was examined by the applicant, who represented himself and other private prosecutors. Concerning the reports containing information on the applicant, the Chief Commissioner stated:

“[Regarding the rally of 19 March 2017,] we were there because in 2016, Societat Civil Catalana [the organiser of the rally] suffered three attacks ... In 2017 they also suffered an attack four days before [the rally] ... The report was written after the rally and it contains information about the people who participated in the rally and press clippings about the rally ... to have a record that could later be requested about the about the number of participants and any public figures among them, for protection purposes ...

We act in a similar way in respect of [various] demonstrations. There were 4,252 demonstrations in Catalonia in 2017 and we attended 961 of them. Where relevant, monitoring reports are prepared ... Reports include any threats [against an event], risk assessments carried out previous to the demonstration and, in some cases, monitoring reports ...

[The surveillance of the applicant in June 2017 occurred at] the time of the [parliamentary hearings] regarding Operació Catalunya . The Deputy Commissioner had received information about someone wanting to approach Mr Fuster-Fabra to influence his statement ... A person [who appeared to be watching Mr Fuster-Fabra] was detected ... [and] was photographed close to the office or home of [Mr Fuster ‑ Fabra]. The aim [of the surveillance] was to check if the information was true. People who are under counter-surveillance [by the Mossos d’Esquadra ] are not informed; the surveillance lasted one and a half days ...

If the existence of a threat is confirmed the person concerned is informed. In this case, while a person was observed who appeared to be watching [Mr Fuster-Fabra] [the existence of a threat] was excluded.”

7 . On 1 January 2019 the investigating judge decided to terminate the proceedings for the lack of the elements of a crime on the following grounds. Although the surveillance of the applicant could have amounted to an interference with his private life in principle, in the circumstances of the case it had been in accordance with the law, had pursued the legitimate aim of preventing disorder and had been proportionate, as it had not involved any interference with his communications or home.

The decision further stated:

“[The surveillance] had a concrete aim, which was to obtain as much information as possible [in an area which is] essential to all police bodies, namely information on the actions of people who, owing to their socio-political prominence, could, at a particularly vulnerable time, become the authors of or participants in incidents affecting public order or victims of such incidents.

This entailed an interference in the privacy of the investigated persons, which nonetheless included neither the interception of communications nor the installation of surveillance cameras ...

The Chief Commissioner has offered a precise explanation of the reasons for each of the actions of the police, distinguishing information from investigation. When the information or preliminary investigation does not result in data capable of prevent[ing] possible offences, the action ceases; otherwise, it continues and it is communicated to the public prosecutor or, where appropriate, to the [relevant] judicial authority ...

Police action within those limits is in accordance with the law, pursues the legitimate aim of guaranteeing public order against possible disorders and is necessary in a democratic society ...

The Spanish rules may be deemed insufficient by the European Court of Human Rights when assessing the [State’s] positive obligations, but that is a different matter from assessing the presence of the elements of an offence. In the latter respect, the alleged offences cannot be accepted ...

The legal provision [taken together with] the reasons justifying [the surveillance] exclude the [consideration of the surveillance] as an arbitrary decision. It cannot be concluded that the investigations were not guided by the purpose of protecting the public interests and, thus, they were not a misuse of powers ...

All the information was gathered through legal means, [the Mossos d’Esquadra ] did not access any secret databases, did not tap any telephone, did not intercept any correspondence and did not enter any house. None of the data ... affect the private life of the private prosecutors ... and they were easily obtained from open sources ...

The thesis of the private prosecutors is essentially based on the contention that they were investigated or monitored for political reasons. That thesis has been disproved.”

8. The applicant appealed against the investigating judge’s decision, requesting that additional investigative measures be taken.

9 . On 26 July 2019 the Barcelona Audiencia Provincial partially upheld the applicant’s appeal. It confirmed that the surveillance had been carried out in public spaces only and had not amounted to an offence. However, the Audiencia Provincial could not exclude the appearance of new elements in the future and the eventual reopening of the case. Accordingly, it quashed the decision to terminate the proceedings and ruled that they were provisionally discontinued. The judgment read, in particular, as follows:

“... There was not any action of information gathering by the Mossos d’Esquadra that could, in itself, constitute any kind of offence ... no information was captured by intercepting the content by technical means, nor were there direct or remote searches of [his] computer or home, nor were any invasive instruments of enquiry used in [his] private life or in intimate spaces. The collection of information was carried out by public officials by direct observation and took place in public spaces ...

There is no evidence of the existence of [a general order to investigate and obtain data concerning certain persons and groups exclusively based on their political ideas]:

Firstly, not everything described by the private prosecutor and the public prosecutor as “surveillance” [ seguimientos ] was strictly surveillance. On the contrary, public rallies and demonstrations were merely monitored and, in that context, participants were identified. It is well known that at the time [of the surveillance] there was a convulsive situation in Catalonia, during which there was a proliferation of rallies and demonstrations and other acts involving the occupation of public space. In this context, it can be inferred from the report of the Chief Commissioner of the Information Service and his witness statement that [the Mossos d’Esquadra ] usually make an assessment of the risks associated with demonstrations based on various parameters, which justifies police monitoring, with a view both to preventing criminal acts against the persons attending or organising them and to obtaining new data to increase the accuracy of future risk assessments. He added that [Societat Civil Catalana] had suffered three attacks in 2016, and that a fourth one had taken place three days before the rally in question, which motivated the monitoring of the ... rally. Likewise, he stated that the presence of the participants was [included in the] report in order to check whether persons of public interest were present, to prevent possible ... attacks against them and to [help] make future risk assessments. This may justify the information gathering by the [ Mossos d’Esquadra ] concerning the rallies of 6 June 2017 and 19 March 2017 [described] in the investigation [materials] ...

Further, it is to be noted that among the documents there were references to the monitoring of other public events that could pose a risk to public order, such as football matches at which violent organisations were present (for instance, elements of the “skinhead” movement): 51 violent incidents were recorded.

Lastly, it is to be recalled that in 2017 the [ Mossos d’Esquadra ] monitored 961 assemblies, which gives an idea of the scale of the situation ...

Concerning the surveillance of Mr Fuster-Fabra, it was linked both to his participation in a rally ... and to his statement before the Parliament of Catalonia. According to the report of the Chief Commissioner, th[e Mossos d’Esquadra ] had received information about a person who wanted to approach Mr Fuster-Fabra and influence his statement [to the parliamentary commission], so a counter-surveillance was ordered, during which a person apparently keeping watch on him was observed close to his office and his home. [T]his circumstance establishes the legitimacy of the police actions.

There were [also] reports on groups considered to be violent ... on persons convicted of various offences ... and on persons suspected to be linked to jihadist terrorism.

All these elements contradict the hypothesis that there was a general order to investigate [certain people].”

10. An action brought by the applicant for the judgment of 26 July 2019 to be quashed ( incidente de nulidad de actuaciones ) was declared inadmissible.

11. The applicant lodged an amparo appeal against the judgment of the Audiencia Provincial , alleging a violation of his right to freedom of ideology and his right to legal protection, and of the principle of legality (Articles 16, 24 and 25 of the Spanish Constitution). On 29 July 2020 the Constitutional Court declared the amparo appeal inadmissible for lack of constitutional relevance.

12. The applicant complained before the Court that the surveillance of his activities by the Mossos d’Esquadra and the reports drawn up by them had amounted to a violation of his right to respect for his private life under Article 8 of the Convention.

RELEVANT LEGAL FRAMEWORK

13. The relevant Article of the Spanish Constitution reads as follows:

Article 18

“1. The right to respect for honour, for private and family life and for one’s own image shall be guaranteed.

...

4. The law shall restrict the use of data processing in order to guarantee respect for the honour and private and family life of citizens and the full exercise of their rights.”

14 . The relevant section of Organic Law 2/1986 of 13 March 1986 on Security Forces reads:

Section 11

“1. The mission of the State Security Forces and Corps is to protect the free exercise of rights and freedoms and guarantee the security of citizens by performing the following functions:

...

e) Maintain and, where necessary, re-establish public order and security.

f) Prevent the commission of criminal acts.

...

h) Gather, receive and analyse all data of interest for public order and security, and study, plan and execute the methods and techniques of crime prevention ...”

15 . The relevant section of Law 10/1994 of 11 July 1994 on the Police of the Generalitat – “ Mossos d’Esquadra ”, states:

Section 12

“1. The “ Mossos d’Esquadra ” Corps, as an ordinary and integral police force, exercises the functions that the legal system attributes to the Security Forces and Corps, and, specifically:

First: Public security police functions:

a) Protecting persons and property.

b) Maintaining public order.

...

d) Monitoring public spaces.

e) Protecting demonstrations and maintaining order in large concentrations of people.

h) Performing, within the powers of the Generalitat , the public safety protection functions attributed to the Security Forces and Corps in Organic Law 1/1992.

...

i) Preventing criminal acts.”

THE COURT’S ASSESSMENT

16. The Government submitted that the applicant had not duly exhausted the domestic remedies, since he had only resorted to criminal proceedings despite the availability of other effective remedies, and that, in any event, his complaint was manifestly ill-founded.

17. The Court considers it unnecessary to establish whether the applicant exhausted effective domestic remedies within the meaning of Article 35 § 1 of the Convention, since the application is in any event inadmissible for the following reasons.

18. “Private life” is a broad term which is not susceptible to exhaustive definition. There is a zone of interaction of a person with others, even in a public context, which may fall within the scope of private life ( see Peck v. the United Kingdom , no. 44647/98, § 57, ECHR 2003-I). Files compiled by security services on a particular individual fall within the scope of Article 8, even where the information has not been gathered by any intrusive or covert methods (see P.G. and J.H. v. the United Kingdom , no. 44787/98, § 57, ECHR 2001-IX and references therein). The storing by a public authority of information relating to an individual’s private life amounts to an interference within the meaning of Article 8 ( see Amann v. Switzerland [GC], no 27798/95, § 69, ECHR 2000-II).

19. Accordingly, the gathering and storing of information on the applicant by the Mossos d’Esquadra amounted to an interference with his right to respect for his private life. Such interference breaches Article 8 of the Convention unless it is “in accordance with the law”, pursues one or more of the legitimate aims referred to in paragraph 2 and, in addition, is “necessary in a democratic society” to achieve those aims (ibid., § 71).

20. The Government argued that the interference was in accordance with Organic Law 2/1986 of 13 March 1986 on Security Forces, and Law 10/1994 of 11 July 1994 on the Police of the Generalitat ‑ “Mossos d’Esquadra” . Section 11 of Organic Law 2/1986 regulates the functions of the State security forces, including data collection and analysis in the interests of preserving public order and national security. Section 12 of Law 10/1994 describes the functions of the Mossos d’Esquadra , which include the monitoring of public spaces, protection of peaceful assemblies and crime prevention. In this case, unlike in M.D. and Others v. Spain (no. 36584/17, §§ 61-64, 28 June 2022), the specific reports on the applicant were connected with the possible commission of a crime (see paragraphs 5, 7 and 9 above) and were within the police’s competences of crime prevention and protection of public order (see paragraphs 14 and 15 above). The Court is thus satisfied that the interference was “in accordance with the law”.

21. The Court further accepts that the interference pursued the legitimate aims of preventing disorder and crime and of the protection of the rights of others.

22. Next, the Court has to determine whether the surveillance of the applicant was proportionate to the aims pursued.

23. In relation, in particular, to interference concerning personal data, the Court reiterates that the protection of such data is of fundamental importance to a person’s enjoyment of his or her right to respect for private life as guaranteed by Article 8 of the Convention. The domestic law must therefore afford appropriate safeguards to prevent any such use of personal data as may be inconsistent with the guarantees of that Article. The need for such safeguards is all the greater where the protection of personal data undergoing automatic processing is concerned, not least when such data are used for police purposes. The domestic law should notably ensure that such data are relevant and not excessive in relation to the purposes for which they are stored, and preserved in a form which permits identification of the data subjects for no longer than is required for the purpose for which those data are stored. The domestic law must also afford adequate guarantees that retained personal data are efficiently protected from misuse and abuse. The above considerations are especially valid as regards the protection of special categories of more sensitive data (see S. and Marper v. the United Kingdom [GC], nos. 30562/04 and 30566/04, § 103, ECHR 2008, and P.N. v. Germany , no. 74440/17, §§ 70-71, 11 June 2020).

24. A margin of appreciation must be left to the national authorities in their assessment whether the interference is necessary in a democratic society. The breadth of this margin varies and depends on a number of factors, including the nature of the Convention right in issue, its importance for the individual, the nature of the interference and the object pursued by the interference. The margin will tend to be narrower where the right at stake is crucial to the individual’s effective enjoyment of intimate or key rights. Where a particularly important facet of an individual’s existence or identity is at stake, the margin allowed to the State will be restricted. Where, however, there is no consensus within the member States of the Council of Europe, either as to the relative importance of the interest at stake or as to how best to protect it, the margin will be wider (see S. and Marper v. the United Kingdom [GC], § 102, and P.N. v. Germany , § 75, both cited above).

25. The Court notes in this respect that the domestic courts took into account several elements, including the socio-political context at the relevant time, the reasons given by the Mossos d’Esquadra for the surveillance, the extent and duration of the surveillance and the means used. They recalled that in 2017 there had been a tense situation in Catalonia with numerous demonstrations involving people with different views about the potential independence of the region, some of them including attacks against the organisers (see paragraphs 7 and 9 above). They observed that the information gathered about the applicant had been obtained in public spaces, without resorting to any invasive actions such as home searches, interception of communications or access to databases. Taking into account all the seized documentation, which included information on various groups that could pose a risk to public order, the domestic courts excluded the existence of any order to monitor the applicant based on ideological or political reasons. The investigating judge observed that the surveillance was aimed at obtaining information on the actions of persons who could be participants in incidents affecting public order or victims of those incidents, and that it had been discontinued once it had been confirmed that it did not offer any relevant data capable of preventing possible offences (see paragraph 7 above). The Audiencia Provincial , for its part, observed that the counter-surveillance of Mr Fuster-Fabra had been ordered after the Mossos d’Esquadra had received information about a person wanting to approach him and influence his statement before the parliamentary commission which, in its view, had established the legitimacy of the police actions (see paragraph 9 above). Furthermore, they ruled out the existence of any offence arising from the actions of the Mossos d’Esquadra concerning the applicant.

26 . The Court agrees that the surveillance of the applicant in public spaces was by its very nature to be distinguished from other methods of visual or acoustic surveillance which are, as a rule, more susceptible to interfering with a person’s right to respect for private life because they disclose more information on a person’s conduct, opinions or feelings (see Uzun v. Germany , no. 35623/05, § 52, ECHR 2010, and compare Szabó and Vissy v. Hungary , no. 37138/14, § 56, 12 January 2016). Nothing in the materials before the Court suggests that a specific file concerning the applicant was created, that the data concerning him was stored in a database (compare Shimovolos v. Russia , no. 30194/09, § 6, 21 June 2011), that the data were retained longer than necessary to achieve the legitimate aim pursued (see Catt v. the United Kingdom , no. 43514/15, § 119, 24 January 2019), or that they were used for a purpose other than that which justified their collection (see M.D. and Others v. Spain , cited above, §§ 55 and 64). On the contrary, the information collected concerned two isolated events, was gathered in public spaces, and the surveillance itself was limited in time (see P.N. v. Germany , cited above, § 87). Furthermore, the applicant did not complain about the disclosure of the information to the public (compare Peck , cited above, §§ 57 ‑ 63). Nor did he argue that the data stored by the police were insufficiently protected against abuse such as unauthorised access or dissemination (see P.N. v. Germany , cited above, § 89). Lastly, the Court notes the relatively limited intrusiveness of the monitoring and the lack of any arguments by the applicant that the interference has had any effects on his daily life (see, mutatis mutandis , ibid., § 87).

27. Having regard to the foregoing considerations, the Court concludes that the reasons adduced by the national authorities to justify the interference with the applicant’s right to respect for his private life were “relevant and sufficient”. The surveillance of the applicant in public spaces struck a fair balance between the competing public and private interests and fell within the respondent State’s margin of appreciation. The Court is therefore satisfied that the interference with the applicant’s right to respect for his private life was proportionate to the legitimate aim sought.

28. In the light of the foregoing, the Court concludes that the complaint is manifestly ill-founded within the meaning of Article 35 § 3 and must be rejected, pursuant to Article 35 § 4 of the Convention.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 15 February 2024.

Martina Keller Mārtiņš Mits Deputy Registrar President