Private persons
II. RELEVANT DOMESTIC LAW AND PRACTICE A. Procedural law and relevant practice 1. Russian Code of Civil Procedure of 14 November 2002 29. Following the acceptance of a statement of claim for examination, the judge makes a ruling on preparation of the case for a court hearing (Article 147). One of the tasks involved in preparing a case for a court hearing is to determine the law which should be applied in order to decide the case (Article 1 48). 30. When rendering a judgment, the court must evaluate the evidence and determine which of the facts important for the examination of the case have been established and which have not been established. It must also determine the legal relations between the parties and decide which law should be applied to the given case and whether the claim should be granted (Article 196 § 1). The court must then decide on the claims as submitted by the plaintiff. However, the court may go beyond those claims in instances provided for by the federal law (Article 196 § 3). 2. Practice of the Supreme Court of the Russian Federation 31. In its ruling of 24 June 2008 “ on the preparation of civil cases for a court hearing”, the Plenary of the Supreme Court of the Russian Federation held as follows: “ ... The courts ’ attention should be drawn to the fact that the preparation of cases for a court hearing is an independent and mandatory stage of the civil procedure which aims to provide for correct and prompt examination of cases. ... Courts should also bear in mind that each and every task involved in preparing a case for a court hearing as enumerated in Article 148 GPK RF [Code of Civil Procedure of the Russian Federation] is a mandatory element of this stage of civil procedure. Non-execution of any of those tasks might result in undue delays in the proceedings and to a judicial mistake. ... When determining the law and any other legal act which should be applied in order to decide the case and when determining the legal relations between the parties, it should be borne in mind that they should be determined on the basis of the totality of data: the subject of and grounds for the action, the defendant ’ s answer to the statement of claim, and other circumstances which have legal importance for taking a right decision on the case ... ” B. Material law Russian Civil Code of 1994, First Part, as worded at the material time Article 152. Protection of Honour, Dignity and Professional Reputation “1. Every citizen shall have the right to claim through a court that material discrediting his honour, dignity or professional reputation be rebutted, unless the person who has disseminated such information can prove that it has a connection with reality. ... If the said material is contained in a document issued by an organisation, that document shall be liable to exchange or recall. In other cases, the procedure for rebuttal or correction shall be ruled on by the court. ... 5. Every citizen with respect to whom material discrediting his honour, dignity or professional reputation has been disseminated shall have the right, in addition to rebuttal or correction of the given information, also to claim compensation for loss and for non-pecuniary damage caused by the dissemination of that material ... ” Article 152.1. Protection of the Citizen ’ s Image “The publication and further use of a citizen ’ s image (including his photographs, audio records or works of fine art in which he is depicted) are admissible only with his consent. ... Such consent is not required in cases where : 1) the image is used in the interests of the State, or in social or other public interests; 2) the citizen ’ s image is obtained when shooting a film in a place open to the public or during a public event (meeting, congress, conference, concert, performance, sports competition and similar event), with the exception of cases where such an image is the principal object of use; 3) the citizen has posed in return for payment.” THE LAW I. THE APPLICANT ’ S STANDING TO ACT ON BEHALF OF HER SON IN THE PROCEEDINGS BEFORE THE COURT 32. The Government did not dispute that the applicant had standing to lodge the present application not only on her own behalf but also on behalf of her son. The Court sees no reason to find otherwise and therefore accepts that the applicant has standing to lodge the present application on her own behalf and also on behalf of her minor son. II. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION 33. The applicant complained under Article 8 of the Convention, on her behalf and on behalf of her minor son, that the unauthorised publication of her son ’ s photograph in a booklet produced for the Municipal Child Protection Centre had infringed their private and family life. She further complained that the domestic courts had failed to protect her and her son ’ s rights to respect for their private and family life. Article 8 of the Convention reads as follows: “1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” A. Admissibility 1. The parties ’ submissions 34. The Government raised two objections as to the admissibility of the application. 35. First, the application was incompatible ratione personae with the provisions of the Convention, since it had been directed against private parties. In particular, the boy ’ s photograph had been taken by a private photographer and published by a private company. The applicant brought court proceedings against those private parties and not against State authorities. The Centre, which had ordered the booklet, took part in those proceedings as a third party. 36. Secondly, the applicant had not exhausted domestic remedies available to her in respect of her complaint of a violation of her son ’ s right to respect for his family and private life. In particular, in her claim lodged before the domestic courts the applicant complained that her honour and reputation had been discredited by the publication of her son ’ s photograph in the booklet. However, as was pointed out by the appeal court, the applicant had not raised any claim under Article 152.1 of the Civil Code (see Relevant domestic law above) about the allegedly unlawful use of her son ’ s photograph. The domestic courts examined the applicant ’ s claims as they had been presented in her statement of claim, in accordance with Article 196 § 3 of the Code of Civil Procedure (see Relevant domestic law above). 37. The applicant did not comment. 2. The Court ’ s assessment (a) Compatibility ratione personae 38. In accordance with Article 3 4 of the Convention, the Court can only deal with applications alleging that State bodies have committed a violation of the rights guaranteed by the Convention. The Court has no jurisdiction to consider applications directed against private individuals or businesses (see, among other authorities, Reynbakh v. Russia, no. 23405/03, § 18, 29 September 2005). 39. In the present case, the applicant ’ s complaint is twofold. First, she complained that the publication of her minor son ’ s photograph in the booklet had infringed their private and family life. Secondly, she complained that the domestic authorities had failed to protect her and her son ’ s right to respect for their private and family life. 40. Regarding the first part of the applicant ’ s complaint, the Court notes that it has been established in the domestic proceedings that the booklet had been prepared and published by a private publishing company at the request of the Centre, a State body. The photograph had been put on the front page of the booklet by Mr P., who had been contracted to work for the publishing company. The applicant initially brought civil proceedings against the Centre, but subsequently she agreed with the domestic court that the Centre was not a proper defendant in the case and had to be replaced by the publishing company and Mr P. Therefore, even assuming that the Centre might have had a share of responsibility in that the boy ’ s photograph had appeared on the front page of its booklet, the applicant did not pursue her claims against it. As for the publishing company, it was not owned by the State, did not exercise any public functions and the State does not appear to have had effective control of it. It follows that in so far as the applicant complains of the actions of that company, this part of the application is incompatible ratione personae with the provisions of the Convention within the meaning of Article 35 § 3 and must be rejected in accordance with Article 35 § 4. 41. However, the second limb of the applicant ’ s complaint was directed against the domestic authorities, who had dealt with her complaints concerning the alleged violation of her and her son ’ s right to respect for their private and family life, and is therefore compatible ratione personae with the provisions of the Convention. It follows that the Government ’ s objection to this effect in respect of that part of the application must be dismissed. (b) Exhaustion of domestic remedies 42. The purpose of the requirement of exhaustion of domestic remedies under Article 35 § 1 of the Convention is to afford the Contracting States the opportunity to prevent or put right the violations alleged against them before those allegations are submitted to the Court (see Selmouni v. France [GC], no. 25803/94, § 74, ECHR 1999-V, with further references). Whereas Article 35 § 1 of the Convention must be applied with some degree of flexibility and without excessive formalism, it does not require merely that applications should be made to the appropriate domestic courts and that use should be made of effective remedies designed to challenge decisions already given. It normally requires also that the complaints intended to be brought subsequently before the Court should have been made to those same courts, at least in substance and in compliance with the formal requirements and time-limits laid down in domestic law (see, among other authorities, Gäfgen v. Germany [GC], no. 22978/05, §142, ECHR 2010). 43. The Court observes that in her statement of claim submitted to the District Court on 20 March 2008, the applicant complained that her honour, dignity and professional reputation had been damaged by the unlawful publication of her minor son ’ s photograph in the booklet. In particular, she submitted that the photograph of her son had been published in the booklet without her knowledge and consent, and had subsequently been widely distributed (see paragraph 15 above). It is true that the applicant did not explicitly rely on Article 152.1 of the Civil Code. However, it was for the District Court, during the preparation of the case for a court hearing, to determine which law to apply in order to decide the case on the basis of the totality of the data at its disposal (see paragraphs 29 and 30 in Relevant domestic law above). Furthermore, it appears from the records of the court hearings that the applicant ’ s representative, G., had expressly complained to the District Court that the photograph had been published without the applicant ’ s consent, in breach of Article 152.1. of the Civil Code (see paragraph 21 above). The Court further notes that in her grounds of appeal against the judgment of 20 June 2008, the applicant also complained that the District Court had not examined the case from the standpoint of Article 152.1. of the Civil Code (see paragraph 25 above). Having regard to the above, the Court considers that the applicant raised her complaint of unlawful publication and dissemination of her son ’ s photograph before the domestic courts and therefore provided them with an opportunity to put right the alleged violation of her and her son ’ s rights under Article 8 of the Convention. 44. Accordingly, the Court dismisses the Government ’ s objection as to non-exhaustion of domestic remedies. (c ) Conclusion 45. Having regard to its findings in paragraph 40 above, the Court considers that the applicant ’ s complaint about the actions of the publishing company is incompatible ratione personae with the provisions of the Convention within the meaning of Article 35 § 3 and must be rejected in accordance with Article 35 § 4. 46. Having regard to its findings in paragraphs 41 and 44 above, the Court considers that the applicant ’ s complaint about the domestic authorities ’ failure to protect her and her son ’ s rights to respect for their private and family life is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 1. The parties ’ submissions 47. The Government considered that there had been no violation of the rights of the applicant and her son to respect for their private and family life. 48. They submitted that in the case of Peck v. the United Kingdom (no. 44647/98, §§ 61-63, ECHR 2003 ‑ I) the Court had identified the following criteria to be applied in order to decide whether the publication of a photograph should be regarded as an interference with private life: whether the photograph related to private or public matters, and whether the material thus obtained was envisaged for a limited use or was likely to be made available to the general public. Applying those criteria to the present case, the Government submitted that the photograph did not relate to any private matter concerning the applicant – it did not show any scene from her private and everyday life and it had been taken in a public place with the applicant ’ s permission. Moreover, it had not been widely disseminated and its publication had had no impact on the applicant ’ s relationship with others. Referring to the case of Friedl v. Austria ( 31 January 1995, §§ 50-51, Series A no. 305 ‑ B ), the Government also pointed out that the booklet did not contain any information as to the identity of the applicant ’ s son and no action had been taken to identify the boy from the photograph. The publication of the photograph also served a noble purpose, namely to find adoptive families for orphans. 49. The Government further submitted that even assuming that the State ’ s positive obligations in respect of the private and family life of the applicant and her son were engaged in the present case, Russia had complied with its positive obligations. The domestic courts had examined the applicant ’ s claims under Article 152 of the Civil Code and had come to the conclusion that the information contained in the booklet had not adversely affected the applicant ’ s honour, dignity and reputation. 50. The applicant maintained her complaint. 2. The Court ’ s assessment (a) General principles 51. The “notion” of private life within the meaning of Article 8 of the Convention is a broad concept which extends to a number aspects relating to personal identity, such as a person ’ s name or image, and furthermore includes a person ’ s physical and psychological integrity; (see Von Hannover v. Germany (no. 2) [GC], nos. 40660/08 and 60641/08, § 95, ECHR 2012, with further references). The Court has also accepted that a person ’ s reputation (see Pfeifer v. Austria, no. 12556/03, § 35, 15 November 2007) and honour (see Sanchez Cardenas v. Norway, no. 12148/03, § 38, 4 October 2007) form part of his or her personal identity and psychological integrity and therefore also fall within the scope of his or her “private” life. In order for Article 8 to come into play, the attack on personal reputation must attain a certain level of seriousness and must have been carried out in a manner causing prejudice to personal enjoyment of the right to respect for private life (see A. v. Norway, no. 28070/06, § 64, 9 April 2009 and Axel Springer AG v. Germany [GC], no. 39954/08, § 83, 7 February 2012 ). 52. Regarding photographs, the Court has stated that a person ’ s image constitutes one of the chief attributes of his or her personality, as it reveals the person ’ s unique characteristics and distinguishes the person from his or her peers. The right to the protection of one ’ s image is thus one of the essential components of personal development and presupposes the right to control the use of that image. It mainly presupposes the individual ’ s right to control the use of that image, including the right to refuse publication thereof (see Reklos and Davourlis v. Greece, no. 1234/05, § 40, 15 January 2009). 53. While the essential object of Article 8 is to protect the individual against arbitrary interference by the public authorities, it does not merely compel the State to abstain from such interference: in addition to this negative undertaking, there may be positive obligations inherent in effective respect for private and family life. These obligations may involve the adoption of measures designed to secure respect for private life even in the sphere of relations of individuals between themselves. That also applies to the protection of a person ’ s picture against abuse by others (see Von Hannover (no. 2), cited above, § 98, with further references). (b) Application of those principles to the present case 54. It is common ground between the parties that the photograph published in the booklet was a photograph of the applicant ’ s son taken when the boy had been on holiday, and that 200 copies of the booklet with the photograph of the boy were published and a number of them were distributed in the Usolskiy District of the Perm region. Furthermore, it was not disputed that the publication of the photograph was not accompanied by any information or comments concerning the applicant herself. Nevertheless, the Court considers that the effect of the publication of the photograph on the applicant ’ s reputation can be accepted to have attained a certain level of seriousness and prejudiced the applicant ’ s enjoyment of her right to respect for her private life. Having regard to the above, the Court considers that the publication of the photograph falls within the scope of the applicant ’ s and her son ’ s “private life” within the meaning of Article 8 of the Convention. 55. The main issue in the present case is whether the domestic courts afforded the applicant and her son sufficient protection of their private life. 56. The Court observes that in taking their decision to dismiss the applicant ’ s claims, the domestic courts established that the photograph had been taken with the applicant ’ s authorisation and that the applicant had not placed any restrictions or conditions on its use. However, they failed to examine whether she had given her consent to the publication of the photograph. 57. The Court further notes that the present case concerns the publication of a photograph which, at least by inference, can be seen to suggest that the applicant ’ s son was an orphan. Consequently, the impugned publication could have given its readers the false impression that the applicant ’ s son had no parents or that his parents had abandoned him. Any of these or other similar false impressions could prejudice the public perception of the family bond and relations between the applicant and her son. 58. The foregoing considerations are sufficient to enable the Court to conclude that there has been a violation of Article 8 of the Convention. III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 59. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 60. The applicant claimed 5, 200 Russian roubles (RUB) in compensation for the sums recovered from her in favour of the Centre by the decision of 20 January 2009. She also claimed RUB 300,000 in respect of non-pecuniary damage. 61. The Government contested those claims. 62. The Court awards the applicant 130 euros (EUR) in respect of pecuniary damage and EUR 7,5 00 in respect of non-pecuniary damage. B. Costs and expenses 63. The applicant also claimed RUB 11, 200 for the costs and expenses incurred before the domestic courts. 64. The Government submitted that the applicant had not provided any documents to confirm that those expenses had been incurred. 65. According to the Court ’ s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 100 covering costs under all heads. C. Default interest 66. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.
The Court held that there had been a violation of Article 8 (right to respect for private life) of the Convention. It found in particular that the Russian courts had failed to examine whether the applicant had given her consent for the publication of the photograph, focusing instead on the authorisation she had given that her son be photographed. The Court also highlighted the false impressions and inferences which could be drawn from the context of the photograph, namely that the child pictured had no parents or had been abandoned by his parents, and the effect that that could have on public perception of the applicant’s relationship with her son.