Διοικητικού Δικαστηρίου - 92/2019

Διοικητικού Δικαστηρίου - 92/2019
Court:	Διοικητικού Δικαστηρίου (Cyprus)
Jurisdiction:	Cyprus
Relevant Law:	Article 43(1),(2) Law N. 158 (I)/1999,
Decided:	03.02.2022
Published:
Parties:	Publications Arctinos Ltd The Republic of Cyprus
National Case Number/Name:	92/2019
European Case Law Identifier:	ECLI:CY:DD:2022:44
Appeal from:
Appeal to:
Original Language(s):	Greek
Original Source:	CyLaw (in Greek)
Initial Contributor:	Heiko Hanusch

The Administrative Court of Nicosia annulled a decision by the Cypriot DPA for a violation of the right to be heard because it did not provide the controller with the opportunity to know the contents of the complaint, thereby violating the right to be heard.

English Summary

Facts

The controller is a newspaper. It published an article about the alleged harassment, unnecessary and illegal detention of a Turkish Cypriot woman who was on the Police Alert-List. The article revealed the names and photographs of the two police officers carrying out these actions. These officers then lodged a complaint with the DPA of Cyprus (Commissioner).

Following the receipt of the complaint, the Commissioner informed the newspaper that the publication would violate the principle of data minimisation as well as Article 6(1)(f) GDPR. However, in doing so, the Commissioner did not disclose the existence of the complaint itself.

The controller did not respond to this communication from the Commissioner, who in turn contacted the newspaper again, setting a four week deadline for an answer. This time the commissioner disclosed the existence of the complaint and the complainants, without however providing the controller with a copy of the complaint.

The controller's lawyer responded, stating that the first letter was inadvertently not answered, and further stated that their client had no possibility to contest the complaint because it is not aware of its content. A few days later the Commissioner imposed a fine on the controller without further notice. The controller appealed this decision with the competent Administrative Court.

Holding

The Administrative Court annulled this decision on the grounds that the conduct of the Commissioner violated the right to be heard.

The court referred to Article 43(1),(2) Law N. 158 (I)/1999, which is the Cypriot Law on General Principles of Administrative Law. Article 43(1) Law N. 158 (I)/1999 stipulates that everyone who is affected by an administrative measure must have the right to be heard, except in cases expressly provided by law. Article 43(2) Law N. 158 (I)/1999 stipulates that an administrative body which intends to base its decision on allegations against a person must provide that person with the opportunity to submit its views on those allegations.

The court further took legal literature and court decisions into account. E.g. it referred to the case T-191/06 - FMC Foret v Commission in which the General Court of the EU held: "According to settled case‑law, the right of access to the file, which is a corollary of the principle of respect for the rights of the defense, means that the Commission must provide the undertaking concerned with the opportunity to examine all the documents in the investigation file that may be relevant for its defense"

The Administrative Court reasoned that the Commissioner was obliged to provide the controller with all the information which affected the decision because the controller's lawyer reacted to the second letter of the Commissioner and, in doing so, had sufficiently expressed the intention to fight the allegations.

The Administrative Court finally concluded that the Commissioner violated this obligation because it did not provide the controller with the complaint itself and, therefore, deprived the Controller of the opportunity to oppose the allegations.

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English Machine Translation of the Decision

The decision below is a machine translation of the Greek original. Please refer to the Greek original for more details.

  PAN-CYPRIOT BAR ASSOCIATION Investigation - List of Administrative Court Decisions - Reporting (Noteup on) - Removal of Emphasis ECLI: CY: DD: 2022: 44 AS AMENDED BY DECREE OF THE COURT. 10.6.2019 ADMINISTRATIVE COURT (Case No. 92/2019) February 3, 2022 [SERAPHEIM, DDD. OF THE REPUBLIC OF CYPRUS THROUGH A COMMISSION FOR THE PROTECTION OF PERSONAL DATA During the Application. _____________________ K. Georgiou (Mrs.), for KALIA GEORGIOU DEPE, lawyers for the applicant. K. Christofi (Mrs.), lawyer, for Attorney General of the Republic, lawyer for the defendant. _____________________ SERAPHIM DECISION, PLR: On 14.8.2018, a written complaint / complaint was received (hereinafter the "complaint") from the Office of the Personal Data Protection Commissioner (hereinafter the "Office") submitted by some .. Steka (hereinafter "the complainants") against the newspaper "Politis" (hereinafter the "newspaper"), regarding an alleged illegal disclosure of their names and photos in a publication dated 17.6.2018 entitled "Police hood in a 70-year-old T / C" (hereinafter the "publication"), which bore the signature of a certain M. Theodoros, a journalist (hereinafter the "journalist"). The article, both in print and in electronic form, allegedly concerned the harassment and unnecessary and illegal detention of a Turkish Cypriot, who was on the Police Alert-List and revealed the names and photos of the two complainants involved in the police case. -investigators, as well as the photo of a third police officer-investigator. By letter dated 31.8.2018, the Office informed the editor-in-chief of the newspaper about this publication, without mentioning the receipt of the complaint (Court Note: in this letter, however, there is a reference to complainants, see paragraph 7 thereof). ), drawing its attention to the relevant legislation and case law both in Cyprus and at European level. By the above letter, the Office informed the newspaper's editor-in-chief that, at first sight, the publication of the names of the complainants in the article in question, together with their photographs, violated the principle of minimization (see Rule 5 of the Rules of Procedure). EU) 679/2016, hereinafter referred to as the "Regulation") and that the provisions of Article 6 (1) (f) of the Regulation do not apply. As the newspaper did not receive any response, by letter of the Office dated 18.10.2018 to the editor of the newspaper, after it was revealed for the first time to the applicant the existence of a complaint before the Office, the conclusion of the Data Protection Commissioner was notified. the "Commissioner") for the above apparent infringements of Rules 5 (1) (c) and 6 of the Rules of Procedure, as well as Rule 29 (1) of the Protection of Natural Persons with regard to the Processing of Personal Data; Free Movement of these Data of the Law, L. 125 (I) / 2018 (hereinafter the "Law") and the newspaper was summoned, as it submits, no later than 4 weeks from the date of the letter, its positions / opinions, as far as concerns the possible violations of the above articles, as well as the reasons for which she believes that any of the administrative sanctions of the Regulation should not be imposed on her. By letter of the lawyer of the applicant, owner of the newspaper and the journalist dated 31.10.2018, the Commission was informed that the aforementioned letter of 31.8.2018 was inadvertently not answered and the said lawyer, after stating that she reserves the rights of her clients in view of the fact that any of the facts relied on by the complainants were not known to its clients, in order to refute them and / or to state their own version, it set out, in any event, the reasons why its journalist newspaper chose to publish the names and photos of the complainants. By decision of 9.1.2019 against the applicant, which was sent by hand to the director and editor-in-chief of the newspaper, the Commissioner decided, inter alia, that: investigators in conjunction with their photographs violates the provisions of Rules 5 (1) (c) and 6 of the Rules of Procedure, as the news could be published without their names and photographs, as the issue of journalistic interest is the substance of the case. The disclosure of such personal data does not serve the public interest interest and is not considered necessary in the context of the principle of minimization for the exercise of the right to information. Therefore, I decided to impose on the Defendant, Arktinos Publications Ltd, in its capacity as archivist, a fine of € 10,000 (ten thousand euros) for the breach of its obligation under Article 5 ( 1) (c) and 6 of the Rules of Procedure. Taking into account the provisions of Rule 83 on the General Conditions for the imposition of administrative fines, I have taken into account the following: (a) the nature of the infringement: it concerns the professional life of the complainants, although the European Court of Human Rights has ruled in in relation to the provision of Article 8 of the ECHR that the protection of "privacy" established in this Article does not exclude the professional life of employees and is not limited to life within the place of residence; (b) the extent of the infringement: disclosure of the names and photos in the newspaper and on the internet concerns an unlimited number of readers (the article in question is still posted on the internet at the following link: http://politis.com.cy/article/astinomiko-kapsoni-se70chroni-tk) , (c) the number of data subjects affected by the infringement: two persons are affected; (d) the position of the Defendant complaining that, (e) the fact that the Defendant did not take any action to mitigate the damage suffered by the data subjects, (f) the previous Decision of my Office against Defendant the complaint (year 2010) concerning the principle of proportionality (now the "principle of minimization"), which, however, due to the specificity of each case, is not duly taken into account for the purposes of this Decision, (g) the fact that Defendant did not cooperate with my Office in remedying the breach and limiting its potential adverse effects and (h) the categories of personal data affected by the breach: name and photograph. " Against the above decision (hereinafter the "disputed decision"), the applicant registered, on 24.1.2019, the appeal under the above number and title. Admissibility of the present action was not raised by the defendant. In essence, the applicant's side, in its written statement, argued as a ground for annulment, inter alia, that the principle of a fair trial had not been complied with, in accordance with Article 6 (1) of the European Convention for the Protection of Human Rights. and Fundamental Freedoms (hereinafter "ECHR") and citing the decision dated 31.2019 in Appeal no. 1873/2012 ANTENNA LTD v. RADIO BROADCASTING (Court note: upheld on appeal), in relation to the principle of the previous hearing, claimed that she was not informed of the allegations of the complainants submitted in their complaint in order to be able to properly present her views. The ombudsman for the defendant's application, in her own written statement, rejects the above allegation, stating, in particular, that, (a) the principle of a fair trial does not refer to the administrative bodies, but to the judicial authorities; and procedures, (b) the defendant granted, by relevant letters (see above) the right to the applicant for a previous hearing, in accordance with Article 44 of Law 158 (I) / 1999, (c), the applicant chose to does not reply within the prescribed time limit and (d) in any event, the defendant in the above letters revealed to the applicant the existence of a complaint against her, as well as the issue on which the complaint was lodged. I examined the above allegation as a matter of priority, in view of its nature and with great care. First of all, the more accurate and correct legal classification of the above allegation (see, however, the decision of the ECtHR, Sigma Radio Television Ltd v. Cyprus, dated 21 July 2011, applications number 32181/04 and 35122/06) is under the right of the previous hearing of the commander (see Article 43 of L. 158 (I) / 1999), which is, of course, an essential administrative procedural right (now protected by Article 41 of the Charter of Fundamental Rights of the European Union), which, in the event of a breach, invalidates the relevant which, on the one hand, gives the affected person the right to assert his rights and propose reasonable solutions before the administration takes an aggravating measure for him and, on the other hand, ensures the fullest information of the administration and, therefore, its reasonable and fairer operation (see more extensively, analysis in the book of Dr. Costas Paraskeva "CYPRUS ADMINISTRATIVE LAW. General Part", Athens 2017, p. 302 ff.) As mentioned, specifically in Article 43 (1), (2) of the Law on General Principles of Administrative Law, L.158 (I) / 1999, with my own emphases: «43 .— (1) The right to be heard is granted, except in cases where the law explicitly provides, in each p a person who will be affected by the issuance of an act or by the taking of an administrative measure that is of a disciplinary nature or that has the character of a sanction or that is otherwise unfavorable in nature.  (2) An administrative body which intends to base its decision on allegations against a person must provide that person with an opportunity to submit its views on those allegations. " In the book of Dr. K. Paraskeva (supra), there p. 326, italic 76 the following are mentioned, with my own emphases: may cause or affect the issuance of the unfavorable for the interests of the decision.1125 (1125 Bakery Andros Theodorou Ltd v. Republic of Cyprus (2009) 3 A.A.D. 577) »In the Bakery A. Theodorou Ltd v. Democracy (2009 ) 3 Α.Α.Δ. 577, a report was made with approval in the book of the OP. Spiliotopoulou "Manual of Administrative Law" 12th ed., Volume I, par. 159, which mentions relevant case law of the Council of State and comments on the right of prior hearing as follows: Article 20 § 2 of the Constitution. Thus, the rule has been formed that the prior hearing of the administrator is necessary in the case of individual administrative acts, which are issued ex officio and which contain a regulation, which is related to the subjective behavior of the interested party and causes positive damage to his rights or legitimate interests. and not when the decision of the administrative body for the assistance of the legal conditions of the issuance of the unfavorable administrative act (based on binding competence) is based on objective data (SE 2595/11977, 796/1987, 3100, 4139/1988, 1713/1994) or issued with binding jurisdiction to establish an automatically existing legal situation (SE 588/2003). " The following were said at A. Theodorou Bakery Ltd (supra): its interests, decision. Of course, as was recognized in the case of Konstantinos, Deputy Minister of Interior, Lt. No. 16/2002, date 5.6.2003, what is important is the knowledge and the ability to be heard by the interested party, without there being prescribed types. " In the decision dated 5.6.2003 in the Appeal No. 16/2002 GALINAKOLENA KONSTANTINOU n. CYPRUS REPUBLIC THROUGH THE MINISTER OF INTERIOR, the following were mentioned: "... intervenes only where it finds an inadequacy in the investigation or an error that makes the conclusion impossible. In this case, I would first expect an explanation that the deposit contained in the complaint was unsigned. Of course, I would not say that in the field in question, as a matter of principle, information to the administration for misconduct is not taken into account unless it is transferred with a signed deposit. However, what is important in any case is to inform the administrator about what is wrong with him and to give him the opportunity to be heard. No specific terms are required for this purpose. It does not matter the standard. It is important that the administrator is able to present his own position or point of view. The case law has generally recognized that for decisions based on adverse judgments concerning the person under administration, such as the one under consideration, he must be given the opportunity to exercise his right to be heard. I note, however, that the Law on General Principles of Administrative Law, L. 158 (I) / 99 article 43 (2), which I quote, explicitly provides this right: “43 (2) Administrative body that intends to support the decision in allegations against a person must provide that person with an opportunity to submit his or her views on those allegations. " In the present case, there is no indication in the administrative file that the complaint against her was even made known to the applicant. The contested decision cannot therefore be upheld. The appeal succeeds at a cost. The contested decision is annulled on the basis of Article 146.4 (b) of the Constitution. " In Knauf Gips v European Commission, Case C-407/08 ECR I-06375, the Court of Justice of the European Union (CJEU) stated, inter alia, the following concerning the right under "The right of access to the file, as a result of the principle of respect for the rights of the defense, implies that the Commission is obliged to enable the undertaking concerned to examine all the documents contained in the investigation file which may be to be critical to its defense. These documents include both incriminating and acquittal elements, with the exception of other companies' business secrets, Commission internal documents and other confidential information (Aalborg Portland and Others v Commission, paragraph 68 and the case-law cited). ». The General Court of the European Union is moving in the same direction. Case T-191/06 FMC Foret, SA v European Commission, European Court reports 2011 II-02959 also states: '261 Under Article 27 (2) of Regulation No 1/2003, the rights of the parties involved must be fully secured during the procedure. These parties have the right of access to the Commission file, without prejudice to the legitimate interest of undertakings in the non-disclosure of their business secrets. 262 It is settled case-law that the right of access to the file, which is a consequence of the rights of the defense, implies that the Commission must enable the undertaking concerned to examine all the documents contained in the case file, which may be relevant to its defense (see, to that effect, Case C199 / 99 P Corus UK v Commission [2003] ECR I11177, paragraph 125, and Judgment of the Court of First Instance of 29 June 1995, T30). / 91 Solvay v Commission [1995] ECR II1775, paragraph 81). 263 Those documents include both incriminating and exculpatory evidence, other than the business secrets of other undertakings, the Commission 's internal documents and other confidential information (Aalborg Portland and Others v Commission, paragraph 109 above, paragraph 68).' In the present case, I note that the Commissioner never communicated or offered for review the text of the complainants' complaint to the applicant, so that she could be placed on their specific allegations. The applicant's prior hearing was, of course, necessary in the present case, since the contested decision and, in particular, the measurement of the sentence imposed, take into account not only objective data, but also the subjective conduct of the applicant and / or her journalist. The previous hearing of the affected person, as pointed out in the case law (see relevant decisions, above) covers the whole range of the content of the data, on which the administrative (aggravating) decision is taken, which must be fully disclosed to the affected person for submission of his views. At this point, it is clarified that the defendant in the application did not invoke any duty of confidentiality to deal with this complaint, nor does it arise from the complaint itself that any form of confidentiality is raised therein. The Commissioner, in fact, revealed, in the letter dated 18.10.2018, that she received a complaint, as well as on what issue and from whom, without, however, I judge, to give, as she should, the opportunity to the applicant to oppose, if wanted, the scope of the complaints of the complainants, which were included in their complaint. Finally, it is fair to say that, although the applicant's side responded to the call in a timely manner as the applicant submitted its views, these appear to have been taken into account, so there is no question of the applicant being prevented from doing so at this stage. , the allegation under consideration here about the lack of a previous hearing, while it is noted in this regard that, with the letter dated 30.10.2018, she reserved her rights on the subject. In view of the above, the contested decision is annulled, due to the lack of (proper) granting of a hearing right to the applicant by the defendant the application on all the elements of the case, since the defendant did not notify or offer for inspection to the applicant the complaint of the complainants, as it should have been, before the acquittal of the applicant or the imposition of a sentence. In view of this result, there is no need to consider the other grounds for annulment put forward by the applicant. Expenses plus VAT are awarded. in favor of the applicant and against the defendant, as these will be calculated by the Registrar and approved by the Court. Γ.ΣΕΡΑΦΕΙΜ, ΔΔΔ. cylaw.org: From KINOP / CyLii for the Pancyprian Bar Association