Third-party right to image in criminal proceedings
Identification of suspect
Use of photograph without consent
Police or court requirements
RULING Nº 81/07
2 of February of 2007
In a criminal judicial investigation concerning homosexual acts with adolescents, keeping the appellant's picture on file against his will (having placed it there without his consent or at least without his knowledge) restricts his ability to check on the use made of it and thus curtails his right to his image.
Keeping an appellant's picture on file may infringe his right to his image, but it may be justified in the present case to protect the interests of the accused (especially those relating to the conduct of his defence), as the photograph was used as a means of identification. It also allows a check on any illegality in the establishing of identity or the bringing of evidence. This remains so until a final decision in the criminal proceedings where the photograph was adduced in evidence.
I. The question was posed as to whether Article 79.2 of the civil code could be interpreted in such a way as to allow pictures of public figures to be kept on file in criminal proceedings where a final decision has yet to be reached. The pictures were used without the subjects' consent, at the investigation stage, in order to identify subjects.
The case did not concern the legality of taking the photographs and using them, nor the means of identifying the accused, nor its use in evidence. The Constitutional Court was not required to express a view on the use, in criminal proceedings, of the particular means of identification and the item of evidence - a photograph of the appellant in an album of photographs of public figures. Nor was the Court required to assess the reasons for the particular method of identification and of finding evidence, which consisted in seeking out people in the public sphere identified by the victims. These were matters to be assessed in the context of the criminal proceedings in which the appellant's photographic image had been used.
The only issue was whether the photograph should have been removed from the file and returned, to protect the appellant's right to his image. The Court was required to consider the constitutionality of the interpretation of Article 79.2 of the civil code. This would mean that a photograph of a third party could be kept on file for police and judicial purposes when that third party was not a suspect and his picture and those of other public figures had been used without permission so that the victims could identify the persons charged in criminal proceedings still to produce a final judgment.
II. The Constitutional Court took the view that the use made of the appellant's picture could not be said to have disproportionately affected the right to control the taking and use of photographs, even in the case of third parties. Nor could it be said to disregard possible insult or indecency - notably in the context of the defence position and possible use of the photographs by the accused to defend themselves.
The Constitutional Court weighed up the appellant's right to his image against the interests that might justify keeping the photograph and which the Constitution likewise protected. It held that Article 79.2 of the civil code was not contrary to the Constitution in circumstances where photographs had been kept on file of third parties, without permission, together with other photographs of public figures, so as to enable the victims to identify the persons charged in criminal proceedings which had not yet produced a final judgment.
One of the judges voted against the finding that the interpretation of the code complied with the Constitution. In his view, the restrictions on the right to one's image that were necessary for the purposes of the investigation were justifiable when set against the purposes and requirements of the investigation. However, keeping on file the picture of someone who was not under suspicion and had no direct connection with the facts giving rise to the charges raised a clear problem of necessity and proportionality. In the case at issue, the provision was unconstitutional.