29 Jul Keeping police files on judges based on their political views led to a violation of the Convention

In the case of M.D. and Others v. Spain (application no. 36584/17, 28.06.2022) the European Court of Human Rights held, unanimously, that there had been a violation of Article 8 (right to respect for private and family life) of the European Convention on Human Rights.

The case concerned the compiling of files by the police in Catalonia on judges who had expressed certain views on that region’s independence from Spain. The applicants are 20 Spanish nationals. They are serving judges and magistrates in Catalonia. In February 2014 they, along with 13 other judges, authored a manifesto which set out their opinion that the Catalan people should have a “right to decide” (that is to say on Catalan independence) under the Constitution and international law. In March of that year, the newspaper La Razón published an article on their manifesto entitled “The conspiracy of the thirty-three separatist judges”. The article included personal details and photographs – taken from the police database – of the applicants.

The Court reiterated that Article 8’s primary purpose was to prevent interference by the police in the privacy of an individual’s private or family life, home or correspondence. However, the Article also entailed an obligation to actively protect the individual from arbitrary interference with their privacy by the authorities.

Regarding the police reports, it noted that there was no domestic legal provision authorising the compiling of such reports without some connection to a crime. The reports contained personal data, photographs and certain professional information (partially extracted from the police ID database), and, in some cases, political views. The Court concluded that the mere existence of such police reports had been in violation of Article 8. 

Concerning the leak and ensuing investigation, the Court stated that it was uncontested that the photos and some other information had been sourced in the police ID database. The domestic authorities had found it established that the Spanish State had been responsible for the leak. Although statements had been taken from some witnesses, in order to have had an effective investigation of the leak, it would have been necessary to have taken statements from the Senior Chief of Police of Barcelona, to whom the reports had been addressed and who had been responsible for the databases. This had not been done. Owing to its failure to carry out this investigative step, the State had failed to comply with its obligations under Article 8 of the Convention. Given these findings, there had been a violation of Article 8 of the Convention.

Reference from the official website oft the European Court of Human Rights